Employers’ Wage & Hour FAQs – California Wildfires Edition
Here are a few scenarios that employers should be aware of when it comes to paying their California employees and maintaining compliance with wage and hour laws:
“Our office was closed for a few days because of the fires. Here are some common scenarios that employers in California should be aware of when it comes to paying their employees and complying with wage and hours laws:
“Our office was closed for several days due to the fires. Do we have to pay our employees for those days?”
Non-exempt (i.e., overtime-eligible) employees generally have to be paid only for hours they actually work. Non-exempt employees who work remotely (from home, from a temporary site, or in a coffee shop) are entitled to be paid for the time worked. If your office is closed for an entire workweek, you can inform all employees of the closure and not pay them for that week (unless they are working remotely). If your office is closed for an entire workweek, you can inform all employees of the closure and you need not pay them for that week (unless they are working remotely).
Be sure to check any agreements with exempt employees–as well as offer letters, policies, or other statements regarding the nature of their pay–which may also limit your ability to prorate salary during office closures and/or give rise to pay claims.
“Because of dangerous conditions, we had to close our office after a number of employees had already reported for work. Do we have pay them for the day?” Non-exempt employees may be entitled to reporting time pay if they arrive for their shift but are sent home without having worked at least half of their shift. There is an exception to this rule for certain circumstances that are out of the employer’s hands, such as natural disasters and wildfires.
If a business closes due to the employer’s decision, and not because of a threat to property or a recommendation from civil authority, or because of faulty public utilities, reporting time pay could be owed. “Our office was open but some of our employees couldn’t make it in due to the fires. Do we have to pay them?
As noted above, nonexempt employees are generally only paid for the hours they work. However, salaried nonexempt workers may be entitled to receive their full weekly salary if they work. They do not need to be compensated for days when they are unable report to work. Their exempt status is not affected if they decide not to pay for those days. Deductions for partial-day absences under these circumstances, however, are not permitted.
“Can employees refuse to work if our worksite is an evacuation zone?”
Yes. California law prohibits employers to retaliate against workers who refuse work in unsafe conditions. This includes when their worksite has been declared an evacuation zone. “Our payroll records have been destroyed or are not accessible due to the fires. How do we pay our employees?”
If the only records of hours worked are lost or unusable, then there is no perfect solution. Recreate the most accurate accounting you can in the circumstances. Use a reasonable method to determine the number of hours worked, such as:
Asking employees to submit a certified time sheet indicating the number of hours they worked;
Re-creating hours worked through electronic records (e.g., card/ID swipes or logins/logouts);
Making assumptions based on an employee’s fixed or regular schedule of hours;
Asking managers to verify hours worked; or
Some combination of the above.
“How do we record employees’ worktime without our electronic time clocks?”
Employees may record all hours worked on physical or handwritten timesheets. Employees should be instructed to enter their own time and to record the actual times when their work starts and stops each workday, including meal breaks.
- “Can we require our employees to use available sick time or vacation days during a fire or natural disaster-related office closure or absence?”
- Employees may use accrued sick leave under California law for absences related to the wildfire disaster if the need falls under a permissible use (such as health issues or to care for a family member). Additionally, the employee may choose to take paid leave under vacation or paid time off policy if the policy provides for such leave or the employer opts to allow, but this generally cannot be required unless reasonable notice is provided and stated in a policy or employment agreement.
- “Can we give our staff additional paid or unpaid time off to assist in recovery or relief efforts?”
- Yes. Employers can give their employees paid or unpaid time off to assist with disaster recovery and relief efforts. Employees who assist in relief efforts while serving as members of the National Guard and Armed Forces Reserves could have additional rights under federal and state law.
- “Due to the fires, our employees had to commute twice as long as they would on most other days. Do we need to pay them for the additional commute time?”
Generally, time spent in an employee’s normal commute from home to work at the beginning of the workday, and from work to home at the end of the workday, is not considered time worked and need not be paid. The employer may consider commute time compensable if the employee is required to meet at a specific location, use the employer’s transport to and from work, and is prohibited from using his own transportation. Some of my employees belong to a union. Do these rules apply to them as well?”
Collective bargaining agreements generally cannot waive or reduce the protections available to employees under federal, state, or local wage and hour laws. Collective bargaining agreements, however, can impose additional obligations on employers, such as time off and additional pay. What can we do?” What are some things we can do?”
Employers that want to do more for their employees may consider the following:
Granting additional paid or unpaid time off;
Allowing affected employees to work remotely for some period of time;
Making loans or emergency advances of wages;
Setting up disaster-relief programs or payments;
Setting up food and clothing drives.
Final Thoughts
Employers making decisions about scheduling, pay, and time off during natural disaster-related emergencies and disruptions should bear in mind the potential implications on employee morale. Flexibility and support in times of need–or the absence of them–are likely to be remembered long after the fires are extinguished.
* * *
For insights on California employer benefit plan challenges arising from the ongoing wildfires, be sure to check out our post from the Employee Benefits & Executive Compensation Blog here.
