After the Storm: Employers’ Obligations After Sandy

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Hurricane Sandy and its aftermath has created enormous difficulties for employers on the East Coast. Between the devastation caused by the storm itself, power outages, and transportation shutdowns, employers were forced to close business or operate on a significantly reduced basis for days, and, in some cases, weeks. Nevertheless, companies must still satisfy certain obligations as employers. While situations vary considerably from employer to employer, here is a summary of key issues and employer obligations post Sandy:

• Employers must properly compensate employees, but they are not required to pay non-exempt, overtime-eligible employees for the days that the office was closed or for the time that the employee was unable to get to work once the business re-opened. However, if an employee is exempt from overtime, that employee is entitled to receive his or her regular salary for any week in which he or she worked regardless of the number of days or hours worked.

• Employers can require its employees to use their accrued vacation or personal time to cover their absences due to Sandy.

• Employers must compensate employees if they are working from home following the storm. Even if working from home, non-exempt employees are entitled to his or her hourly rate of pay for every hour worked and overtime for any hours worked over 40 hours in the week. Such employees should be recording their hours and employers are expected to maintain those records just as if the work was performed at the employer’s place of business. Exempt employees working from home will be entitled to their weekly salary, even if they don’t physically report to work.

• Employers are expected to make an effort to re-create employment records that were destroyed due to the storm. This includes, for example, weekly payroll records and I-9 forms.

• Employers must make payroll payments as soon as practicable if payroll was delayed by Sandy or its aftermath.

• While most states and the IRS extended many tax deadlines for businesses in disaster areas, the state deadlines for submitting employment-related taxes were only briefly extended. For example, in New Jersey and Connecticut, deadlines for filing employment-related tax documents – such as employers’ quarterly tax reports – were extended from October 31 to November 7, 2012, while New York extended those deadlines until November 14, 2012. However, absent additional exceptions, employers are now expected to have filed their state tax forms and payments notwithstanding the storm.

• Employers that are forced to terminate employees or close locations must be mindful of the Worker Adjustment and Retraining Notification Act (“WARN”) if they have 100 employees or more (or 50 or more employees in New York).

As employers try to return to “business as usual” after Sandy, it is important to keep these issues in mind. For more information on emplyer obligations, please contact Employment Practice Group Leader Mike Delikat or Compensation & Benefits Practice Group Leader Jonathan Ocker.