* The Manufacturing Law Blog provides timely commentary on issues of importance to manufacturers and distributors. Contributors from the law firm of Robinson & Cole LLP are corporate compliance and litigation attorney, Jeff White ; environmental, health and safety attorney, Pam Elkow; and labor and employment attorney, Nicole Bernabo.
Our thoughts and prayers are with the Boston community and all those who have been touched by the Boston marathon tragedy.
This tragedy has raised questions about unexpected business closures that interrupt the work week, among many other very serious issues. There are numerous, split second decisions that need to be considered by manufacturing employers in the face of such a tragedy. This week’s post addresses the Fair Labor Standards Act (FLSA) issues that should be considered in such a situation. When government officials encourage (not officially request) the public to stay home, employers must determine whether they will also direct employees to stay home, send workers home who are already at the facility, and/or shut down operations for a predetermined period of time, sometimes without much guidance about the nature or length of the emergency.
The FLSA is the federal law governing wages and hours of work. The FLSA requires employers to pay covered, non-exempt employees no less than the federal minimum wage for each hour actually worked and overtime at one and one-half times an employee’s regular rate of pay for all hours actually worked in excess of 40 in a week. These requirements are not subject to waiver during unexpected business closures, natural disasters and recovery efforts.
The general FLSA rule provides that if there is an unexpected business closure, an employer is not required to pay non-exempt employees for time not worked during the closure. An employer may allow non-exempt employees to receive some form of compensation for days in which the employer’s facilities are closed by allowing the employees to choose to charge such time to the employee’s accrued leave time (personal or vacation time).
For exempt employees, the rule is that exempt employees are required to receive their full salary for any week in which the employee performs any work, regardless of the number of days or hours worked, unless no work is performed for the entire workweek.
Be mindful, however, that there are exceptions to this rule for non-exempt employees who are working under a fluctuating workweek arrangement, and state laws may also dictate other compensation rules, such as “on-call” assignments or being sent home after reporting to work.
There is some uncertainty surrounding this week’s unique situation in Boston as there is no regulatory or judicial guidance that specifically addresses a town affected by a “lockdown” and whether an employee who stayed home because of a “lockdown” has done so for “personal reasons”. Further, employers may decide to make an exception and pay non-exempt employees for the time off and/or refrain from making any deduction to salaried employees in light of the extremely sensitive and unique nature of this tragedy.
Employers may wish to consider developing an emergency or disaster policy that: (a) permits non-exempt employees to charge their leave bank accounts if facilities are closed; and (b) requires exempt employees to charge their leave bank accounts either when the employer’s facilities are closed or when the employee refuses to report to work during an unexpected business closure.