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
matter. Each legal matter should be considered to be unique and
subject to varying results. The invitation to contact the authors
or attorneys in our firm is not a solicitation to provide
professional services and should not be construed as a statement as
to any availability to perform legal services in any jurisdiction
in which such attorney is not permitted to practice.
Duane Morris LLP, a full-service law firm with more than 700
attorneys in 24 offices in the United States and internationally,
offers innovative solutions to the legal and business challenges
presented by today's evolving global markets. Duane Morris LLP,
a full-service law firm with more than 700 attorneys in 24 offices
in the United States and internationally, offers innovative
solutions to the legal and business challenges presented by
today's evolving global markets. The
Duane Morris Institute provides training workshops for HR
professionals, in-house counsel, benefits administrators and senior
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It is rare these days for a California appellate court to weigh in on whether an
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