Payroll After a Disaster: Employer Responsibilities Under the Fair Labor Standards Act

Hurricane Harvey created untold mayhem and tragedies in Texas, while Irma has flooded and destroyed much of Florida. Fires rage across the west. Many employers throughout the country are facing some type of natural disaster and they are concerned not only with their own personal situations, but also with concern over their employee’s safety and the viability of maintaining their businesses.

This article first appeared on the SwipeClock blog.

The purpose of this article is to highlight some common issues that arise during a natural disaster or calamity in order to make it easier for business owners to quickly find the answers they seek and maintain their business compliance during difficult times.

Lost Records and TimeSheets due to an Emergency Situation

The Fair labor Standards Act (FLSA requires employers to keep and maintain certain records including time sheets, and payroll information. This can become a major problem when those records are destroyed or lost due to a natural disaster.

If unpaid employee hours or time cards are lost or destroyed during a natural disaster, fire, or other crisis, then employers should attempt as soon as possible to remedy the situation. Those time and attendance records should be recreated as accurately as possible.

Employers should ask employees to recreate or record their hours worked ot the best of their recollection.

They should also consider having those records include a written note that the record is according to the best of the employees memorization. It should also include an authorization that authorizes the employer to make changes in the future if additional or more accurate information becomes available.

Even in the digital age, an astounding number of small businesses still use manual time sheets. In addition to costing employers fines in compliance infractions, paper time cards also costs employers money because of human error, time sheet fraud, and the number of hours spent in menial labor.

SwipeClock is a favorite solution for both small and large businesses because of its cost reducing features and automated tracking and records retention.

Is Overtime Still Required on top of all the other expenses?

Under the FLSA, non-exempt must always be paid for overtime worked. Additionally, employees cannot ever volunteer hours for their employer. This includes time spent in helping to clean up a business location, or helping a small business to get back up and running.

The FLSA does not have any contingency or emergency clauses that exempt an employer from paying employees during or following an emergency or natural disaster.

A digital timekeeping solution such as SwipeClock will help to ensure that businesses stay compliant even if payroll employees are unable to work full hours after a disaster.

Paying Employees during a Natural Crisis Business Closure

Businesses who close their doors and regular business operations during a natural disaster must still pay some employee’s wages. Non-exempt employees must be paid for all hours worked even if those hours were done from home or a remote location due to the storm. Additionally, hourly employees must also be paid for any hours in which they did not work, but were required to remain on the business premises ready to work or “on call.”

Exempt employees must be paid a full day’s wages for any days in which they worked, even if they only worked a few hours. Additionally, if the business closes for less than a week, then exempt employees must also be paid a full week’s wages. In both of these situations, however, the employees wages can be deducted against any paid leave balances that the employee has accrued such as paid time off (PTO), personal or vacation pay.

If the business is closed for 1 week or more, then exempt employees can have their wages deducted for the amount of time the business is closed and the employee does not work.

Coordinating FMLA leave with a Natural Disaster

While FMLA does not have any specific provisions for employees to take protected time as a result of a natural disaster, there are several aspects that employers should be aware of.

First, employees can take FMLA leave if they have any kind of a chronic condition that flares up as a result of the disaster. This includes both mental and physical illnesses such as chronic anxiety, diabetes, and other issues. Employees can also take leave if a natural disaster creates a serious health condition. Often this would be indicated by any overnight care in a hospital, hospice or other care facility.

Secondly, employees can take FMLA leave to care for a parent, spouse or child with a chronic or serious health condition. This would include helping to care for a parent who had diabetes and cannot get regular care because of flooding and the inability to travel.

Third, employees who are already on FMLA leave when a crisis hits still continue to use their FMLA leave if the business closes for a week or less due to the crisis. However, if the business closes for a week or more from the disaster, then existing FMLA leave balances are paused until the business reopens and resumes normal operations.

Businesses in Florida, Texas and Louisiana, as well as a other places that have potential natural disasters, still have to comply with state and federal labor laws even while overwhelmed with the practical aspects of dealing with those crises. .

Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Medical Leave Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.

Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.


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