Employment issues in the event of a hurricane
Hopefully no hurricanes will impact The Tampa Bay Area this summer, but in the event of a hurricane (or other disaster resulting in a business closure) Florida employers need to be mindful of their wage and hour obligations to their employees. Also important is for businesses to have emergency plans in place before a hurricane occurs. Employers should have contact information on hand for employees and a pre-determined method for contacting employees in the event of a hurricane. Business needs will dictate whether employees are vital to operations during a hurricane or helping a business resume operations after a hurricane or if the employees can work from home while business operations are recovered. In the event of a business closure due to a hurricane, Florida employers covered by the Fair Labor Standards Act (“FLSA”) must continue to pay employees in accordance with the FLSA.
Whether an employer has to pay an employee if the business is closed due to a hurricane depends on whether the employee is “exempt” or “non-exempt” under the FLSA. Employers do not have to pay non-exempt employees when no work has been performed as non-exempt employees must only be paid for hours actually worked. However, employers must continue to pay exempt employees if they work at any time during a workweek and are available to work the remaining days regardless of whether they actually work. If the business is closed for less than a workweek and an exempt employee has worked part of the week, then the exempt employee must be paid for the entire workweek. If the business is closed for an entire workweek and the exempt employee did not work at anytime during that workweek then the business is not required to pay the employee any part of their salary for that week.
Employers must be mindful of employees working from home during a business closure and should have a policy in place that requires non-exempt employees to track and report all time worked as non-exempt employees must be paid for all time worked and must be paid at the proper overtime rate for hours worked over 40 in a workweek.
Employers who place employees “on-call” during a hurricane or at any time must determine whether the on-call time must be paid. If employees are not able to use the time for their own purposes then the call time will be deemed compensable. Employers should talk with their employment lawyers to determine if their employees must be paid for on-call time.
Hurricanes and other business closures pose significant challenges to employers in order to maintain compliance with wage and hour laws. Please remember that this article is written for Florida employers and that out of state employers may have additional or different state law wage and hour obligations. If you have questions about your wage and hour obligations during a business closure please do not hesitate to contact us.
Colleen Flynn is a partner with Johnson Pope and focuses her practice on Labor and Employment issues.