Employer Considerations in the Wake of Devastation

by Jackson Walker

Jackson Walker

As businesses resume operations and start the recovery from Hurricane Harvey, they are likely to face a variety of employment related challenges. These are a few of the issues that employers should be prepared to address.

Forced Time Off.

Some businesses are not operational or are operating at reduced capacity, yet have employees who are willing and able to return to work. Non-exempt employees need only be paid for actual hours worked.  However, under the Fair Labor Standards Act (FLSA), certain exempt employees must be paid their full weekly salary if an employer shuts down operations due to adverse weather conditions for less than a full workweek. More detail on the differences between exempt and non-exempt employees is instructive:

  • Exempt employees. Generally, exempt employees must be paid their full salary when the employer closes operations for less than a full workweek due to a weather-related emergency or other disaster. In other words, if the employee is “ready, willing and able to work,” deductions from salary may not be made for time when work is not available. Further, if the workplace is open for business but an exempt employee chooses not to report to work because of the adverse weather (or related issues), an employer may only make deductions from the exempt employee’s salary for full-day absences. Such absences are deemed “personal reasons” under the applicable federal regulations. Still, in the immediate aftermath of the hurricane, employers might want to think twice before taking this likely unpopular approach.
  • Non-exempt employees. An employer must pay non-exempt employees only for the hours they actually work. Therefore, whether a non-exempt employee is absent because the worksite has been closed due to the storm or because the employee needed to take time off, the non-exempt worker is not entitled to compensation for hours not worked.  An employer can always elect to compensate non-exempt employees despite these rules.

Requests for leaves of absence.

Employers should be familiar with the requirements of various statutes when considering employee requests for time off. Under certain statutes, employees may be entitled to take time off or even an extended leave of absence. As example, the Family and Medical Leave Act (FMLA) may be implicated if an employee (or the employee’s family member) has suffered a serious medical condition; a leave of absence can be considered a reasonable accommodation the Americans with Disabilities Act (ADA); and the Uniformed Services Employment and Reemployment Rights Act (USERRA) may be implicated in connection with absences due to participation in certain disaster relief operations.

  • FMLA.  FMLA  may be the most common statute implicated in Hurricane Harvey’s wake. In addition to needing some time off to address property damage or help friends and family, employees may suffer both physical and mental or emotional injuries as a result of Hurricane Harvey’s devastating impact. Eligible employees may take FMLA leave for a serious health condition that makes the employee unable to perform the essential functions of his or her job, or to care for a spouse, son, daughter, or parent who has a serious health condition. Under some circumstances, employees may take FMLA leave on an intermittent or reduced schedule basis.

Employee requests for advances of paid time off (PTO) and/or wages.

Employers should review their policies related to salary advances and accrual and use of PTO. If an employer elects to advance PTO and/or wages, it should document the arrangement with the employee, including re-payment terms and conditions. Employers that intend to withhold future wages to recoup advances should ensure they have wage deduction agreements in place that comply with the Texas Payday Act.

While exacting adherence to benefits policies is ordinarily best practice, to the extent employers opt to allow some leniency under existing policies in this time of widespread disaster, it is nevertheless important to make sure that such decisions are non-discriminatory and based on legitimate reasons with respect to all employees. Please contact us if you would like help updating and revising your leave policy to address these issues.

Requests to work remotely.

Remote work arrangements can be a challenge to manage from a wage and hour perspective. If employees are permitted to work remotely, employers should clearly communicate expectations regarding what constitutes “working time” and how to handle reporting of hours actually worked.  Non-exempt employees must be paid for all hours actually worked … even if those work hours were not authorized.  With regard to exempt employees, businesses should keep in mind that, with few exceptions, exempt employees must be paid their full weekly salary even if they only work a few minutes of each workday.

On-Call Employees.

Employers may need employees to be “on call” or otherwise available to perform work on short notice. If certain criteria are met, the FLSA requires that on-call employees be compensated for the time they are required to remain on-call.

We anticipate that the aftermath of Hurricane Harvey will lead to many additional issues that implicate various employment laws.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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