A question that I am frequently asked after a hurricane strikes is “Do I have to pay my employees for times that my business is closed during and after the storm?” The answer is a resounding “maybe”. It all depends upon the classification of employee (and company policy), and we can break it down into two distinct categories; Hourly and Salaried.
Let’s look at the hourly employee first. An employee who is paid based on the hours they work would not be entitled to any legally mandated pay for time they are not working. Some states require that if an employee shows up to work only to find out that the workplace is closed (provided they were not notified not to show up), there is a minimum amount of pay due, but Florida does not have this requirement. Keep in mind that in the aftermath, an hourly employee that wants to “volunteer” to come in and clean up the business needs to be paid for the hours worked. No matter what work they perform, they must be compensated for any time worked for the business.
As for salaried employees, this can be tricky. Salaried employees come in two flavors. FLSA Exempt and Non-Exempt. A Non-Exempt employee is treated as the hourly employee above, and can be docked for any time missed while the business is closed. On the other hand, a FLSA Exempt employee must be paid their full week’s pay if they perform any work whatsoever during the work week. The Department of Labor states that if the employee is ready, willing and able to work, deductions may not be made for time when work is not available. If the employee is not able to come to work, say their car is blocked in the driveway by a downed tree or flooding, then they are not “ready, willing and able”, and their pay can be reduced for that time missed.
If the employee has accrued paid time off, then then the employer can deduct time missed from their bank until it is zero. Although, let me reiterate, that even after the employee’s accrued time is reduced to zero, the employee is still entitled to the full amount of weekly salary as long as they were ready, willing, and able. In order to invoke this policy, it should be made part of your handbook, so employees are aware ahead of time. The Department of Labor has disapproved of the practice of reducing paid time off into the negative, so do not do it.
Two final notes, first be sure to check the company handbook/policies for language regarding these situations. For example requiring payment to non-exempt hourly employees for times when a disaster strikes. If you have not looked at the handbook in some time, take this as an opportunity to review and make these changes. Second, if you have union employees, check with your union employee manual and representative as their requirements vary greatly from one union to the next.
Hopefully this provides a general guidance, though this is not meant to provide legal advice and every scenario is different. Be sure to contact an attorney for guidance on your specific situation. Contact me if you need a reference for an employment law attorney.
Be safe and try to stay dry.
