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Keeping A Watchful Eye On The FLSA Storm (And Hurricane Florence Too)

Posted on: September 14th, 2018

By: Brad Adler & Koty Newman

Hurricane season has arrived.  So, what are employers to do if they would like to keep their offices open, but employees do not want to work during the storm in the areas affected by the hurricane?

  1. What Are The Rules On Payment Of Exempt Employees’ Salaries?

Generally, if salaried exempt employees perform any work during the workweek, they must be paid their full salary for that workweek, regardless of the number of hours or days that the employee worked.  Thus, if a salaried exempt employee performs any work during the workweek and decides to evacuate the day or days that the hurricane makes landfall, that employee generally still must be paid his or her full salary for that workweek.

There are exceptions to the general rule, particularly if the employer’s office remains open and the exempt employee misses an entire day, but it is important to talk with your legal counsel before deducting from the employee’s salary in such a situation.

  1. What Are The Rules On Payment Of Non-Exempt Employees?

Generally, hourly employees need only be paid for the hours that they actually work.  Thus, if an hourly employee calls out or decides to skip the day that a hurricane comes to town, the employer does not have to pay the hourly employee for that day.

  1. How Does PTO Come Into Play For Absences Associated With A Hurricane?

If an employee misses work because of a hurricane, the employee can utilize PTO so the absence is paid.  Even if an employee who misses work because of a hurricane doesn’t want to use PTO, an employer can force the use of PTO.  That is particularly significant in dealing with an exempt employee who misses a part of a day.  For instance, if an exempt employee leaves work after working 2 hours, an employer can require the employee to utilize 6 hours of PTO for the remaining hours missed that day.

  1. Can An Employer In North Carolina Require Its Employees To Work Through A Hurricane And Can It Fire An Employee Who Fails To Come Into Work?

Unless there is a federal evacuation order, the legality of requiring an employee to show up to work depends on the state law that applies to the situation.

In North Carolina, aside from the impact on morale, we think it creates a legal risk for an employer to terminate an employee for failing to appear at work if that employee is under an evacuation order in response to an oncoming hurricane.  Although North Carolina is an at-will employment state, an employer may not terminate an employee in North Carolina for a reason that contravenes public policy.  See Coman v. Thomas Mfg. Co., 325 N.C. 172, 175 (1989).  The Court in Coman stated that it is the public policy of North Carolina “that the safety of persons and property on or near the public highways be protected.”  Id. at 176.

In fact, Coman proceeded to state that:

[w]here the public policy providing for the safety of the traveling public is involved, we find it is in the best interest of the state on behalf of its citizens to encourage employees to refrain from violating that public policy at the demand of their employers.  Providing employees with a remedy should they be discharged for refusing to violate this public policy supplies that encouragement.

Id. Thus, because requiring employees to show up to work during a hurricane while an evacuation order is in effect could necessarily involve them driving unsafely on the roads, depending on the situation, an employer could be subject to a wrongful termination suit for terminating employees who refuse to appear at work during the hurricane.  Although the plaintiff in Coman was a truck driver, the case still provides a basis for a disgruntled employee to sue his/her employer if the employer chooses to terminate the employee for his/her absence at work during an evacuation order.

Moreover, apart from the safety of the roads, in dealing specifically with mandatory evacuation orders, the power of counties, municipalities, and the governor to issue voluntary and mandatory evacuation orders appears in North Carolina General Statutes §§ 166A-19.30 and 166A-19.31.  The refusal to obey a mandatory evacuation order is a Class 2 misdemeanor in North Carolina.  See N.C.G.S. § 14-288.20A.  Consequently, requiring an employee to come in to work when that employee is under a mandatory evacuation order is requiring the employee to break the law as it appears in the North Carolina General Statutes, and, thus, very likely violate public policy.

If you have any questions or would like more information, please contact Brad Adler at [email protected] or Koty Newman at [email protected].

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