To help employers clear the confusion, Laura T. Kerekes, chief knowledge officer at ThinkHR, addresses some post-Sandy questions that may be top of mind for HR/benefits professionals.
1. If the company has no power and sends employees home for the day, how do we pay employees? And does it matter if the employee is exempt or nonexempt?
In general, there are two sets of rules for paying employees depending upon their classification under the Fair Labor Standards Act as it relates to eligibility for overtime. With non-exempt employees, there is no obligation under federal law or state law to pay for time not worked. However, under certain state laws, employers may have an obligation to compensate nonexempt employees under call-in/reporting pay laws, especially if the employees were not advised that they should not report to work and were denied work upon arrival at the workplace.
These pay obligations vary by state. For example, New York employers are required to pay full-time nonexempt employees reporting to work for at least four hours' pay or, if the scheduled shift is shorter than four hours, wages for the number of hours in the shift. In New Jersey, non-exempt employees who report to work must be paid for the hours they work and at least one hour at the applicable wage rate whether or not work is performed.
With respect to salaried exempt employees who must be paid on a "salary basis" under FLSA, employers may not make salary deductions for absences that result from an employer’s partial-week closing of operations, including closings due to weather-related emergencies or disasters. The bottom line is that exempt employees must be paid their full salary if they perform any work in a workweek and only miss work time due to the employer's closure of operations. Closures for a full workweek need not be paid if no work is performed.
2. Are these rules different if a company can tell the employee not to come to work the next day?
For nonexempt employees, if they are told in advance not to come to work and the employees stay home, then the employer is under no obligation to pay them for the time off. The employer and employee can choose to use accrued paid time off to compensate the employee for the missed workdays.
For exempt employees, the “salary basis” rule still applies. In some cases the employee may be working from home during the bad weather days. If the state laws permit employers to do so, employers may deduct the exempt employees accrued paid time off from to resolve the issues related to "salary basis" compliance. Employers should ensure, however, that these employees have not done any work from home during the office closure prior to deducting time from the accrued paid time off bank.
3. If an employee is on FMLA leave, do those "bad weather days" count against that employee's 12-week allotment of time off?
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