Hurricane Harvey: Wage and Hour Issues in the Wake of the Storm

As employers reopen their doors for business in the wake of Hurricane Harvey, here are some key points to keep in mind regarding wage and hour issues related to the storm.

Exempt Employees

Closed offices

Salaried exempt employees who performed any work during the workweek generally must receive their full salaries for the workweek, even if their employers’ offices were closed due to the storm. However, employers may require exempt employees to take deductions from their vacation (or other paid time off (PTO) or personal leave) accruals for the time during which their employers’ offices were closed due to the storm, as long as that approach is consistent with the employer’s policies. Notably, an exempt employee must receive payment in an amount equal to his or her guaranteed salary for the workweek, even if:

• the employee does not have accrued benefits in a leave bank;
• the employee has limited accrued leave benefits and reducing that accrued leave will result in a negative balance; or
• the employee already has a negative balance in his or her accrued leave bank.

Failure to report to work

Employers’ obligations would be slightly different if the employer’s offices were open and the exempt employee failed to perform any work for a full day due to the storm.  An exempt employee who is absent due to inclement weather when the employer’s office is open is considered absent for personal reasons. Accordingly, if an employer’s office is open and an exempt employee is absent and performs no work, and that employee also does not have accrued benefits in his or her leave bank account, the employer is not required to pay that employee for the full days he or she fails to report to work. If, however, that exempt employee performs any work remotely (e.g., answers emails, communicates with staff by phone, etc.), the employee must be paid for the full day even though the employee did not report to the office. 

The Fair Labor Standards Act does not permit deductions from an exempt employee’s salary for less than a full day’s absence. Therefore, if an exempt employee is absent for one-and-a-half days due to a personal reason (e.g., transportation difficulties due to adverse weather conditions), his or her employer may deduct only for the one full-day absence, and is required to pay the exempt employee a full day’s pay for the partial day he or she worked.

Nonexempt Employees

Weather-related absences

Generally, in the absence of a collective bargaining agreement provision or state law to the contrary, employers are not required to pay nonexempt employees for weather-related absences, regardless of whether the employer’s offices are closed for business. Employers with the financial means to do so may choose to continue pay their nonexempt employees.

Reporting time pay

Texas law does not impose minimum reporting time pay requirements for nonexempt employees. Employers are only required to pay nonexempt employees for time actually worked.

On-call time

If a nonexempt employee is required during a weather emergency to remain on call on the employer’s premises (or so close to the employer’s premises that he or she cannot use the time effectively for his or her own purposes), that employee is likely working while on call and must be compensated for that time. Conversely, if an employee “is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached,” then the employee is likely not working while on call and need not be compensated for this time.