United States: Hurricane Guidance For Employers: Wage And Hour Considerations

(August 30, 2019) - As hurricane season begins and Florida braces for Hurricane Dorian, companies impacted by this year’s hurricanes face a host of employment law concerns, including significant challenges maintaining compliance with wage and hour laws. This alert provides general guidance about those issues under the Fair Labor Standards Act (FLSA). Note that state laws may impose more stringent or different requirements. Legal and human resources professionals should seek the advice of counsel if specific questions arise or assistance is needed developing policies and procedures.

Whether an employer is required to pay its employees if it cannot operate or continue full operations depends on the status of the employee as exempt or non-exempt under the FLSA. 

Non-Exempt Employees

Under the FLSA, an employer is not required to pay non-exempt employees for time not actually worked. Non-exempt personnel need not be paid for days they did not come to work or for days the business was closed due to weather or storm-related damage, assuming no remote work was performed. Non-exempt employees who are paid on a fluctuating workweek basis, however, must be paid their full weekly salary if any work is performed during the workweek.

If non-exempt employees work from home or other remote locations during a business closure or disruption, that time is compensable, and the employer must ensure that employees accurately track and report all time worked. Having the employee certify that the time reported is complete and accurate is a best practice.

Employees who are “on call” must be compensated if they are not able to use the time for their own purposes because of the restrictions placed on their time by their employer. The fact that an employee is unable to use their time for their own purposes because the storm took out power (or caused some other disruption) does not turn the time into compensable work time. Some employers are also subject to state law reporting time requirements that require employers to pay a minimum amount to employees who show up for work, even if they do not actually perform work (Florida does not have this requirement). 

However, if an employee reports to work and is required to wait, for example, for power to be restored, that time is compensable waiting time. The employer is essentially “engaging” them to wait.

Additional considerations for non-exempt employees:

  • Employees are not required to be paid for longer than usual commuting time caused by the storm if the employee is called in.
  • Do not permit employees to “volunteer” their time to help the company. Time spent on disaster relief or other activities on behalf of the employer may be compensable and performed while on the clock.
  • If time records have been destroyed, an employer must engage in reasonable efforts to document all time worked and properly compensate employees.
  • Collective bargaining agreements may impact whether an employee must be paid beyond the requirements of the FLSA or if certain employer obligations will be suspended.

Exempt Employees

Exempt employees must be paid their full weekly salary if they work at any time during the workweek, even if the business is closed for part of the week. It is not permissible to pay a pro-rata salary or to deduct from an exempt employee’s pay based on the quantity of work performed during the week. If the business is completely shut down and no work is performed by the exempt employee for an entire workweek, exempt employees are not required to be paid. However, care should be taken when taking this position. Remember, exempt personnel can work remotely when a business location is shut down due to the storm – making cellphone calls, answering emails from clients or staff, etc.

There are also circumstances where it may be appropriate to deduct a full day of pay from the weekly salary of an exempt employee; for example, if the business remains open but an employee cannot get to work because of weather, the employer may be able to treat that time as a personal leave and deduct a full day of pay. Less than a full day cannot be deducted without jeopardizing the exemption status. Exercise caution when considering not paying exempt employees their full salary. It can be a legal and employee relations minefield that may well outweigh any potential cost savings.

Other Practical Considerations

Employees are not entitled to time off for personal activities such as finding a new place to live, reuniting with loved ones, or clean-up activities, but employers may wish to make such time available. Limits should be placed on the time off allowed so it is clear when an employee is expected back at work, if the time will be paid or unpaid, and if an employee will be required to use accrued paid time off (PTO). Employees can be required to use accrued PTO or vacation time to cover absences, in accordance with company policies. 

Employers should clearly communicate that it is the employee’s responsibility to request an extension of time off if needed, which is not guaranteed, and that a decision will be made at that time in accordance with the needs of the business and applicable laws such as the Family and Medical Leave Act (FMLA) and state leave laws.

Be aware that emergency response and military personnel may be called out to respond to the emergency. If this occurs, the employee’s absence may be protected under state or federal law (for example, USERRA leave). Care should be taken before disciplining any employee in these circumstances.

Payroll is still due on your normal payday. Storms can sometimes disrupt payroll and force employers to find alternative pay methods.

Finally, employers should capture current contact information for all employees to ensure they are able to communicate effectively through recovery efforts.

We hope everyone stays safe throughout this storm season and has a great holiday weekend. We also understand that emergency situations can quickly become complicated. Please do not hesitate to contact us and we will be happy to walk you through your HR related crisis. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions