Wildfires continue to rage across Southern California, leveling entire neighborhoods, forcing evacuations for tens of thousands of people, and posing incredible hardship on businesses and their employees.  Below are a few common scenarios employers should know about paying their California employees and maintaining compliance with wage and hour laws:

“Our office was closed for a few days because of 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.  So, if a non-exempt employee cannot work because your office is closed—or because the employee cannot make it into the office because of natural disaster-related conditions—the wage and hour laws do not require you to pay the employee for non-working time.  On the other hand, a non-exempt employee who performs work remotely (say, from home, from a temporary site, or from a coffee shop) is entitled to pay for the time worked.

An exception exists for salaried non-exempt employees, who may—depending on the terms of their agreement with the employer—expect to receive their full weekly salary regardless of how many hours they actually work that week.

Exempt employees (i.e., employees not entitled to overtime pay) generally receive their full salary for any week in which the office is closed for less than a full workweek. 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 to pay them for the day?” 

Exempt employees who report to work but are turned away or sent home by their employer generally must receive their salary for that week. 

Non-exempt employees are often entitled to reporting time pay when they show up for their shift and are sent home before they’ve worked at least half their shift. But there is an exception for certain conditions that are beyond the employer’s control, including natural disasters like wildfires.

If the business closes at an employer’s discretion, and not due to a threat to property, recommendation by civil authority, failure of public utilities, or work interruption by an “act of God,” reporting time pay may be owed. When a nonexempt employee shows up for work as scheduled and is not put to work or is given less than half of their scheduled hours, the employee is eligible for reporting time pay equal to one-half of the scheduled shift, but no less than two hours and no more than four hours.

“Our office was open, but some of our staff could not make it in because of the fires.  Do we need to pay them?

As we note above, non-exempt employees generally must be paid only for hours they actually work, but salaried non-exempt employees may have a right to receive their full salary for any week in which they perform work.

Exempt employees who are absent from work for one or more full days because of transportation difficulties are considered to be absent for personal reasons if the office is otherwise open.  Absent a contractual right to be paid, they do not have to be paid for the days they are unable to report to work, and the employer does not jeopardize their exempt status if it decides not to pay them 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 from retaliating against workers who refuse to work in unsafe conditions, including when their worksite is an evacuation zone.  Employers should check local evacuation orders before reopening worksites and communicate clearly with employees about when it is safe to return.

“Our payroll records were destroyed in the fires or are inaccessible.  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 under 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 may grant their employees additional paid and unpaid time off for any reason, including assisting with disaster-related recovery and relief efforts.

All employers must also provide leaves of absence for employees who serve as volunteers for local fire departments or other emergency response entities but are not required to compensate the employees during this time off.  Employees who are assisting in relief efforts as part of the National Guard or Armed Forces Reserves may have additional rights under state and federal law.

“Because of the fires, it took our employees twice as long to commute to work as opposed to 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.  However, commute time is considered compensable work hours where the employer requires its employees to meet at a designated place, use the employer’s transportation to and from the work site, and prohibits employees from using their own transportation.

“Some of my employees are members of 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.  However, collective bargaining agreements can—and often do—impose additional pay, time off, and other obligations on employers.  Employers with unionized employees should consider all applicable agreements when analyzing their rights and responsibilities in the context of a natural disaster-related emergency or other “force majeure” event.

“We want to do more for our employees, to go above and beyond what the law requires. 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 about support that may be available from employer-sponsored 401(k) plans to employees impacted by the wildfires and other potential benefits, be sure to check out our post from the Employee Benefits & Executive Compensation Blog here.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the Co-Chair Emeritus of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law…

Anthony J. Oncidi is the Co-Chair Emeritus of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Jonathan Slowik Jonathan Slowik

Jonathan Slowik represents employers in all aspects of litigation, with a particular emphasis in wage and hour class, collective, and representative actions, including those under the Private Attorneys General Act (PAGA). He has defended dozens of class, collective, and representative actions in state…

Jonathan Slowik represents employers in all aspects of litigation, with a particular emphasis in wage and hour class, collective, and representative actions, including those under the Private Attorneys General Act (PAGA). He has defended dozens of class, collective, and representative actions in state and federal trial and appellate courts throughout California and beyond. In addition to his core wage and hour work, Jonathan has defended employers in single-plaintiff discrimination, harassment, and retaliation cases, and in labor arbitrations. Jonathan also regularly advises clients on a wide range of compliance issues and on employment issues arising in corporate transactions.

Jonathan has deep experience representing clients in the retail and hospitality industries, but has assisted all types of clients, including those in the health care, telecommunications, finance, media, entertainment, professional services, manufacturing, sports, nonprofit, and information technology industries.

Jonathan is a frequent contributor to Proskauer’s California Employment Law Blog and has written extensively about PAGA on various platforms. He has been published or quoted in Law360, the Daily Journal, the California Lawyer, the Northern California Record, and the UCLA Law Review.

Jonathan received his B.A. from the University of Southern California in 2007, magna cum laude, and J.D. from UCLA School of Law in 2012, where he was a managing editor of the UCLA Law Review.

Photo of Sehreen Ladak Sehreen Ladak

Sehreen Ladak is an associate in the Labor & Employment Department. She represents clients in a wide range of employment matters, including state and federal litigation, arbitration, and class actions on wage and hour, discrimination, harassment, and retaliation claims. Sehreen has experience managing…

Sehreen Ladak is an associate in the Labor & Employment Department. She represents clients in a wide range of employment matters, including state and federal litigation, arbitration, and class actions on wage and hour, discrimination, harassment, and retaliation claims. Sehreen has experience managing every aspect of litigation, including taking and defending depositions, arguing discovery and dispositive motions, and leading trials and labor arbitrations.

Sehreen also advises clients on various employment issues, including wage and hour compliance, onboarding procedures, employment and separation agreements, handbooks, and workplace accommodations.

In addition, Sehreen has experience in evaluating labor and employment issues in connection with corporate transactions and partners with her colleagues in corporate and executive benefits departments to provide the highest level of service. She also regularly leads employee trainings on workplace conduct and has been published in trade journals on a variety of employment law topics.

Sehreen’s clients come from a broad spectrum of industries, such as transportation, entertainment, healthcare, financial services, and retail. She leverages her experience to provide highly efficient, yet thoughtfully bespoke solutions to address her clients’ unique needs.

During law school at USC, Sehreen was the Southern California Review of Law and Social Justice’sExecutive Submissions Editor and served as a judicial extern for an administrative judge at the E.E.O.C.

Sehreen was selected to be a Protégée for Proskauer’s Women Sponsorship Program, an initiative for high performing midlevel lawyers that champions emerging leaders. She also serves as a member of the Firm’s Associate Council and Asian Lawyer Affinity Group.