At the risk of being jaded, it seems that, after
every natural disaster, plaintiffs'
lawyers follow. So, now is good time to brush up on wage
and hour rules relatives to closings that may result from
1. As a result of the FLSA's salary basis
requirement, if as a result of the hurricane, you close for less
than a full work week, you must pay an exempt employee for
days that you are closed. However, you generally can require
that an exempt employee use PTO during a day in which you close.
[Note: general rule most probably would not apply to sick days;
same is true for #2 below].
2. If you remain open and an exempt employee does not come
to work, you do not have to pay the employee for the day; this can
be treated as an absence for personal reasons, provided it is a
full day. If an exempt employee arrives late or leaves early, he or
she must be paid for the full day, but you generally can require
that he or she use PTO, if available, to cover the non-working
time. You also must pay him or her if he or she works
3. No legal obligation under the FLSA to pay non-exempt
employees who do not work because you close due to the hurricane;
however, there is an exception for non-exempt employees who are
paid under the fluctuating work week.
4. Even if there is no duty to pay non-exempt employees,
consider the employee relations message of paying exempt but not
paying non-exempt employees for a day on which you are closed.
5. Also, if non-exempt employee works at home, you must pay for
all time worked. Systems must be put in place to state who can work
remotely and how they must record their time so that they are
properly paid. Remember, break rules apply to working at home
6. Keep in mind state law may impose
additional requirements or restrictions. For example only, in
New Jersey, there are call-in requirements; that is, if an employee
comes to work and is sent home, there is a minimum number of
hours' pay the employee must receive.
7. Keep in mind also that there may be payment obligations
under collective bargaining agreements and/or your policies.
This article is for general information and does not include
full legal analysis of the matters presented. It should not be
construed or relied upon as legal advice or legal opinion on any
specific facts or circumstances. The description of the results of
any specific case or transaction contained herein does not mean or
suggest that similar results can or could be obtained in any other
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subject to varying results. The invitation to contact the authors
or attorneys in our firm is not a solicitation to provide
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It is commonly understood that under the FMLA, an eligible employee of a covered employer is entitled to 12 workweeks of leave during a 12-month period for the birth of a child, the placement of a child for adoption or foster care, . . .
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