LEL Flash | Issue: March/April 2013

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Issue: March/April 2013

Special Feature

How Natural Disasters Affect Obligations under the Fair Labor Standards Act

Neither hurricane, nor earthquake, nor tornado, nor gloom of other disasters, stays employers' obligations under the Fair Labor Standards Act (FLSA). Natural disasters and their aftermath raise a host of federal wage and hour issues. Some of the more frequently asked questions are discussed below.

Does the FLSA require employers to pay employees who miss work because of the weather?

The answer depends on whether the employee is exempt or non-exempt. Employers generally only are required to pay non-exempt employees for hours worked. Thus, employers are not required to pay such employees for days they do not come to work or for days when the business is closed as a result of weather. This general rule does not apply to non-exempt employees who are paid on a fluctuating workweek basis. Those employees must be paid their full weekly salary for any week during which any work is performed.

The issue is more complicated for exempt employees. If a business closes due to weather, the FLSA requires employers to pay exempt employees their regular salary for any shutdown that is shorter than a week. An employer may not deduct an employee's pay when the employee is ready, willing and able to work but none is available. Deducting an exempt employee's pay for absences due to a business closing lasting less than a week would jeopardize the employee's exempt status. However, a private employer may deduct the period of absence from exempt employees' paid vacation or paid time off so long as they receive their full salary for the week. If a business remains open but an exempt employee cannot get to work because of the weather, then the employer may deduct the exempt employee's pay for a full-day absence. An employer may deduct an exempt employee's pay for a full-day absence taken for personal reasons.1 Employers may choose to pay exempt employees their full salary and require them to "make up" lost time once they return to work.

It is important to check state wage and hour and wage payment laws to determine whether they impose greater requirements on employers. Some states may have reporting pay requirements that require employers to pay a minimum amount to employees who show up for work. Collective bargaining agreements may require employers to pay employees for a minimum number of work hours or days per week regardless of how many they work.

Does the FLSA require employers to pay employees for on-call time?

If an employer requires non-exempt employees to be on call during a natural disaster or its aftermath and the employees cannot effectively use the time for their own purposes, then the employer must pay the employees for on-call time. Whether time spent on call is compensable is a question of fact based on the particular circumstances. An employee required to remain on the employer's premises or who is highly restricted in activities while on call is working while on call. Such restrictions include excessive geographical limitations on an employee's movement and short time limits for responses.2 Exempt employees do not have to be paid for on-call time. State laws may impose different or more stringent requirements for on-call time.

Does the FLSA require employers to pay employees for waiting time?

If a non-exempt employee is required to wait at work, the waiting time is deemed to be compensable working time if it is short and controlled by the employer, is unpredictable, and the employee is unable to use the waiting time effectively for his or her own purposes. For instance, employees required to be at work and wait for debris to be cleared, power restored, water drained, etc. are on compensable working time.

Do the FLSA's recordkeeping requirements still apply during natural disasters?

Yes. An employer remains responsible for maintaining accurate records of hours worked for non-exempt employees. If such employees work from home or offsite, they must keep track of their hours. Similarly, if an electronic timekeeping system isn't functional, employees should be instructed to manually record their hours.

1See Wage & Hour Opinion Letter, FLSA 2005-46 (October 28, 2005)

2See Wage & Hour Opinion Letter, FLSA 2008-14 NA (December 18, 2008)

Frederick L. Warren is a partner in the Atlanta office of Ford & Harrison LLP, a national labor and employment law firm representing management.

Contents

Opening Page

Comments from the Chair

Ethics Corner

Feature

Section News: ERR Gives Back


Now Available, continued

Age Discrimination in Employment Law, 2012 Cumulative Supplement

This treatise arms practitioners with detailed analysis of this litigious area of employment law. It presents detailed guidance on issues such as persons protected under the ADEA; persons against whom a charge can be filed; retaliation, hiring, and promotion; mandatory retirement; reductions in force; constructive discharge; special issues for unions and apprenticeship programs; disparate treatment; collective bargaining agreements and union obligations; litigation strategies; and more.

The 2012 Cumulative Supplement, current through June 30, 2011, includes explanation of the Equal Employment Opportunity Commission's "Final Regulation on Disparate Impact and Reasonable Factors Other than Age," issued in March 2012, addressing the Supreme Court cases on disparate impact under the ADEA in Smith v. City of Jackson (2005) and Meacham v. Knolls Atomic Power Laboratory (2008). It analyzes appellate court decisions following the Supreme Court's interpretation of "but for" causation in Gross v. FBL Financial Services, Inc. (2009), and continued use of the McDonnell Douglas burden-shifting framework to analyze disparate treatment actions brought under the ADEA. Finally, the 2012 Cumulative Supplement discusses federal court decisions awarding monetary relief under the ADEA and the proper formation of jury instructions pertaining to those remedies.

This treatise is published in cooperation with the Federal Labor Standards Legislation Committee.

Section members are entitled to significant discounts on this and other Section treatises published by ABA/Bloomberg BNA, including the following recent new editions: Elkouri & Elkouri: How Arbitration Works, Seventh Edition, Employment Discrimination Law, Fifth Edition, and Employee Benefits Law, Third Edition.

For a complete listing of Section titles and discounted prices, and to order, visit www.bna.com/bnabooks/abale.

Flash Co-Chairs:

Jeremy J Glenn, Meckler Bulger et al | Elana Hollo, National Labor Relations Board | Katherine Huibonhoa, Paul Hastings LLP | Amy F. Shulman, Broach & Stulberg LLP

American Bar Association Section of Labor and Employment Law
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