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Jonathan A. Segal
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Reminder of wage and hour rules:

1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed (unless an employee did not do any work for the company in the work week). However, you can require that an exempt employee use PTO during a day in which you close.

2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day.  If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you can require that he or she use PTO, if available, to cover the non-working time.  You also must pay him or her if he or she works from home.

3. No legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for  non-exempt employees who are paid under the fluctuating work week.

4. Further, under some state laws, such as in New Jersey, there are call-in requirements; that is, if an employee comes to work and is sent home, there is a minimum number of hours’ pay the employee must receive. Plus, there may be CBA obligations.

5. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed. 

6. Also, if non-exempt employee works at home, you must pay for all time worked.  Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid.  Remember, break rules apply to working at home too.

7. Keep in mind state law may impose additional requirements.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .
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Jonathan A. Segal
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As you know,  the EEOC has been attacking maximum leave provisions in leave of absence policies for quite some time.  According to the EEOC, maximum leave provisions violate the ADA. See http://blogs.duanemorrisinstitute.com/jsegal/date/201101

Now, the EEOC is going after attendance control policies. Please see summary of recent $20 million EEOC settlement with Verizon for allegedly not excluding absences covered by the ADA from its no fault attendance control policy. See http://www.eeoc.gov/eeoc/newsroom/release/7-6-11a.cfm

Employers need to take a look at their attendance control policies and consider adding a specific exclusion for absences covered by the ADA and then reviewing each absence to make sure none for which points are awarded is covered by ADA.

Employers who do not have a no-fault point system but rather have general policies on absenteeism also need to be careful to exclude any absences potentially covered by the  ADA before concluding absenteeism is excessive.   The employer may wish to document what absences it has considered—and which it did not—so that the employer can demonstrate to the EEOC or a court that it did not consider “protected” absences.

While this blog focuses on the ADA, employers must be careful not to consider absences covered by the FMLA or state leave laws as well.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as pertaining to specific factual situations.

About Jonathan A. Segal
602
author_image
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .