Friends, it’s been a long week.
No it hasn’t. It was a short 4-day workweek, on 2 of which I came to work in pajamas. So, I’m handing the keys to The Employer Handbook to a guest blogger. It’s my buddy, Behnam Salehi. Behnam is an Associate Attorney at Freeman Mathis & Gary, LLP. If you want to give Behnam a shout, maybe ride shotgun in my Ferrari before he returns it washed and waxed, you can email him. And if you want to guest blog on an employment-law topic at The Employer Handbook, email me.
Snow storm in September? Nope, it’s the Pope!
Crowds stocking up on supplies, road closures, significant detours, crowded streets, and business disruptions. That will be the scene in the Northeast next week. No, there’s no snowstorm or hurricane or Nor’easter, but Pope Francis will be visiting and drawing crowds from around the world. The result—the same as a snowstorm—employees will face major challenges commuting to work and there will be significant disruptions to business operations throughout the region.
How does the Pope’s visit implicate the Fair Labor Standards Act?
To help shed light on the situation, I have prepared the following quick guide on relevant employment law considerations, including most importantly, our dear friend wage and hour. [Editor’s Note: I know “wage and hour.” You could even say we’ve gotten Platonically intimate over the years. But, wage and hour is not my “dear friend”
let alone, offered to split the check at dinner. Right about now, poor Behnam is second-guessing his decision to guest blog for me. Sucka!]
If the employer opts for office closure, and most will, it will need to determine which employees can work remotely. For employees who can work remotely, their pay will not be affected. However, for employees who cannot, employers must be mindful of the Fair Labor Standards Act. In addition, employers also need to review their employee handbook and policies to determine whether employees are entitled to benefits beyond those available under the law. [Editor’s Note: Remember to check state and local law too.]
It may come down to exempt versus non-exempt.
For non-exempt employees, employers are only required to pay for hours worked. Therefore, the employer would not be required to pay non-exempt employees for days off due to business closure. However, different rules apply if the employee is required to remain “on-call,” with compensation required if the employee cannot use that time for their own personal benefit. If the office remains open, the employer may require employees who are unable to report to work to use PTO or vacation time.
On the other hand, exempt employees who perform any work during a given week must be paid their full wages for the week irrespective of any business closure. For example, if an exempt employee reports to work on a Monday for a given week and the employer closes the business for the remainder of that week, the employee must be paid for the week in full. Employers may require exempt employees to use paid time off or vacation time for business closure. However, if the exempt employee has not accrued any such time, the employer may not deduct wages. Warning: deducting an exempt employee’s wages may convert that employee’s status to non-exempt, thus potentially creating liability for overtime wages in the future. The same “on-call” considerations apply to exempt employees.
Other workplace implications.
Beyond wage and hour issues, employers must also be mindful of considerations that may apply to specific individuals under the Family Medical Leave Act and the Americans with Disabilities Act. [Editor’s Note: I’ve discussed the FMLA implications before.]
Remember, while the Pope might offer forgiveness, don’t expect the same from the U.S. Department of Labor.