December 15, 2017
Record-breaking temperatures, high winds, and other factors have caused a frenetic wildfire season in California that has uncharacteristically extended into December. The Thomas Fire in Ventura and Santa Barbara counties is now the fourth largest fire in California’s history, destroying over 1,000 structures, many of them businesses. More than 90,000 residents have been subjected to mandatory evacuations, leaving many of them displaced and unable to work. Los Angeles County, San Diego County, Sonoma County, and many others have been hit by devastating fires in the last few months. In this environment, it is important for employers to understand their legal obligations to employees when natural disasters strike.
Paying Non-Exempt Employees
Under the federal Fair Labor Standards Act (FLSA), employers are required to pay non-exempt employees only for actual time worked. Thus, they need not compensate an employee who is non-exempt and unable to work because of a natural disaster. Even if non-exempt employees want to work but the worksite is closed, they do not need to be paid for regularly scheduled hours.
Normally, if an employee "reports" to work, an employee may be entitled to compensation under "reporting time" pay requirements. However, reporting time pay is not required under either the FLSA or California law if the work disruption is caused by an "Act of God," such as a wildfire or earthquake. (Industrial Welfare Commission Wage Orders 1-16, Section 5.) Thus, any employer that is unable to open for business but still has employees who appear for work should document the reason for the closure in order to avoid paying employees reporting time pay. Further, public employers should check whether their collective bargaining agreements provide for compensation in the event of a natural disaster, as some unions have negotiated for such provisions.
Paying Exempt Employees
Public employees who are exempt under the FLSA must be paid their full salary when the employer shuts down operations due to a natural disaster and the employees are unable to work, assuming the employees worked at any time during the week. (29 C.F.R. 541.602(a)). If a public entity is closed beyond a week, it is not obligated to pay exempt employees who are not performing work. If an employer is open for business and an employee elects to stay home and not perform any work, the employee is considered absent for personal reasons and not entitled to pay. (29 C.F.R. 541.602(b)(1)). Further, employers may require exempt employees to use their accrued vacation time or paid time off for partial day absences necessitated by the employees’ circumstances. (See Rhea v. General Atomics (2014) 227 Cal.App.4th 1560.)
Due to factors such as poor air quality and street closures brought on by the fires, employees may wish to work from home. As noted above, non-exempt employees must be paid for all time worked. Non-exempt employees who work from home are entitled to compensation even if they did not receive express permission to work remotely. California has a very broad definition of work time; thus any communication with an employee, no matter how slight, could require compensation. Employers that do not want employees to work remotely should explicitly state this in writing and ensure they do not request work of the employee. For non-exempt employees authorized to work from home, an employer should put into effect a written policy for timekeeping and attendance so the employees know what is expected of them during this time period. Exempt employees working remotely also must be paid their regular salary, even if they work only a portion of their normal work day. Again, employers should properly communicate with employees in this situation to manage expectations.
Employers may receive a greater number of requests for time off from employees both during and right after natural disasters like wildfires. Employers are required to provide time off only in specific situations, such as sick leave, pregnancy leave, military service leave, voting leave, crime victims leave, and school activities leave, to name a few. Many Memorandums of Understanding provide for leave not required under federal or California law, such as personal leave time.
The recent wildfires have led to an increase in employee requests for sick days due to poor air quality. Employers should consult their sick leave policies when granting these requests. Also, employers are required to provide time off to employees who take care of sick or injured family members under the Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) if the employee qualifies for such leave.
Employees directly affected by the fires may ask their employers to set up catastrophic leave banks, in which employees can donate leave credits to cover other employees’ absences due to catastrophic illness or injury or to care for a family member who has suffered a catastrophic illness or injury. These banks are permissible under California Code of Regulations section 599.925.1 and also may be allowed by the agency’s Memorandums of Understanding with the unions.
In addition to compensation and leave issues, many public employers may find themselves with a shortage of workers due to the need to reallocate employees to other cities and counties to provide aid. Employers who hire temporary employees, independent contractors, or retirees should make sure they comply with CalPERS’ strict reporting requirements concerning these types of workers.
The lingering effects of the wildfires will be felt into 2018 and beyond. For example, the Sonoma County Deputy Sheriff’s Association and other Sonoma County government employee groups have asked the County to extend the benefits provided under their current labor contract (which was due to expire) for one year to avoid engaging in protracted negotiations when their time can be better spent on recovery efforts. J.D. Morris, After October Fires, Sonoma County Government Employees Ask to Put off Contract Talks for a Year, The Press Democrat, Dec. 10, 2017. Other counties and cities may find themselves in a similar situation.
In addition to the topics covered here, employers may face other legal issues related to the fires. Please feel free to consult with one of the attorneys at AALRR if you have any specific questions regarding employee relations in the wake of the fires or other natural disasters.
We at AALRR would like to thank all the firefighters and public safety officers who have worked above and beyond the call of duty to protect the people of California, our pets, our homes, and our businesses from the wildfires.