EntertainHR: Twisters Reminds Employers to Be Weather (and Employment Law) Aware

Twisters was a great summer movie. It had action, the hint of romance, subtle nods to original, questionable science and Glen Powell in a cowboy hat. What more can you ask for?

I’m an employment lawyer living in the heart of tornado alley. So, I know a thing or two about tornados and what to do when the sirens go off. I have also witnessed first-hand what happens when your city has a tornado tear a path right through it, destroying businesses, homes and schools. Here are a few employment law basics when your business is impacted by severe weather.

1. Paying Employees for Missed Time Due to Storms

Whether an employer must pay an employee when they miss work due to weather depends on whether the employee is exempt or nonexempt.

For exempt employees, the FLSA requires employers to pay these employees his or her regular salary for any shutdown that lasts less than a week. A private employer may, however, deduct the period of absence from the employee’s paid vacation or paid time off, as long as the employee receives their full salary for the week. If the business remains open but an employee cannot get to work because of the weather, an employer can deduct an exempt employee’s salary for a full day’s absence. Under the FLSA, an employer can deduct an exempt employee’s pay for a full-day absence taken for personal reasons without jeopardizing the employee’s exempt status. Employers cannot, however, deduct an exempt employee’s salary for less than a full-day absence without jeopardizing the employee’s exempt status.

Under the FLSA, employers generally are not required to pay nonexempt employees for any days that the employee does not perform any actual work. Thus, employers are not required to pay employees for days they did not come to work or for days when the business was closed because of a weather event. This does not apply to nonexempt employees who are paid on a fluctuating workweek basis. These employees must be paid their full weekly salary for any week during which any work is performed, even if they miss some work due to the storm.

Some states, however, have reporting pay or “show-up” pay requirements that require employers to pay a minimum amount to employees who show up for work even if they do not perform any work. Employers should familiarize themselves with the requirements of these state laws. Additionally, collective bargaining agreements may require employers to pay employees for a guaranteed minimum number of work hours regardless of the number of hours actually worked.

2. On-Call Time

Under the FLSA, if the employer requires a non-exempt employee to be on-call while the office is closed due to a weather emergency, and the employee cannot effectively use the time for his or her own purposes, the employer must pay the employee for the on-call time. Employers are not required to pay employees who are at home and available to the employer but able to use the time for their own purposes. State laws may impose different or more stringent requirements for on-call time.

3. Unemployment

Employees who are out of work for reasons other than their own misconduct generally are entitled to unemployment compensation as long as they have met the requirements of the state’s unemployment compensation laws. In some states, an employer’s unemployment compensation account is not charged when an employee is discharged because of a natural disaster. Employers should check the laws of the states in which they do business.

4. On the Job Injuries Caused by the Storm

Generally, employees who are injured during the course and scope of employment are limited to workers’ compensation claims and cannot sue the employer in court over the injuries. If, however, the injuries are the result of an employer’s deliberate or intentional conduct rather than an accident, the employee may have the ability to sue the employer in state court. Employers should check the laws of the states in which they do business.

5. A Safe Return to Work

The Occupational Safety and Health Administration (OSHA) states that employers are responsible for providing a safe and healthful workplace for their employees. Employers are required to protect workers from the anticipated hazards associated with the response and recovery operations that workers are likely to conduct. Falling debris, slippery surfaces, and exposed electrical lines can all occur when a tornado strikes.

Finally, with the increase of severe weather events we have seen in recent years, it is now more important than ever to make sure you have a weather disaster plan in place. Many employers have plans in place in case of fire but forget about a severe weather plan. Make sure each location has a place (or two) where employees can take cover from severe storms and that employees are trained in where that place is. Make sure there are flashlights and extra batteries available at each of your locations in case of power outages. Develop a system to know who is in the building at any given time and get an accurate headcount once the storm passes to ensure that everyone is safe.

Be safe out there.

Rachel Ullrich is a partner at FordHarrison.

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