Employment Law Issues In The Wake Of Sandy
We send well wishes to our clients and colleagues in the northeast grappling with the aftermath of Sandy. In addition to just trying to keep your business going, this catastrophic storm raises a host of employment law-issues for employers. After days of power outages and other storm-related damage, some of the questions you may need to address include the following:
- Am I liable if employees get hurt or injured trying to make their way back to work? Whether an employer would be liable in the event an employee is hurt or injured trying to report to work on a day when the employer has reopened is not clear-cut and would likely depend on a number of factors. At the very least, to guard against such potential liability, an employer should proceed carefully in communicating with employees about their return to work. Instead of insisting that employees show up on a designated day and time, it is prudent that e-mail or text communications with employees be sensitive to their concerns about safety and logistics. The best approach is for employers to instruct employees to use their own discretion when it comes to returning to work, while requiring that they stay in touch and let the business know whether they will be making it in or not.
- How do I pay employees when the business is closed during and after the storm? This mainly depends on whether the employee is exempt from the overtime pay regulations. In the interest of employee morale, however, the employer may want to consider providing pay for the closure for all employees, although there likely is no legal obligation to do so for non-exempt employees. In short, when the business was closed at the business owner's discretion (or, in the case of a storm like Sandy, due to a government-declared state of emergency), exempt employees still need to be paid their full salary in any workweek in which they perform work, but non-exempt employees only need to be paid if they work. Employers can require all employees to use a banked vacation, sick or personal day to cover the day. However, if the employer does not provide paid time off or the employee has no remaining days in their bank, exempt employees probably need to be paid for the closure, while non-exempt employees generally do not. Keep in mind, that some states, like New York, have "show-up" pay if non-exempt employees show up and are sent home.
We know these are trying times for many business owners affected by the storm, and we hope you have power and heat, and can keep a level head and positive attitude in dealing with these and the other challenges facing us in the days ahead.
Special thanks to EO NY Member Joel Greenwald!