Employer’s Payment Obligation in the Wake of Hurricane Sandy

Wednesday, November 7, 2012

Article Written By: Katie Farrell, Staff Writer

As the destruction left by hurricane Sandy slowly begins to be mended, a frequent question is whether an employer must pay wages to employees who did not work due to a storm closing. Although many families of New York have luckily been relatively unharmed as a result of the storm and their homes, possessions, and families remain intact, almost all New Yorkers were forced to miss one if not multiple days of work due to power outages and other consequences of Sandy’s aftermath.

What Category of Employee Are You?

While you should consult with an experienced employment attorney for a specific answer in light of your pay policies and practices, there are different answers for salaried exempt and hourly non-exempt employees.

Salary basis means that an employee receives a fixed rate of pay for a fixed number of hours each week. Although several criteria separate salaried exempt workers from salaried nonexempt workers, the one key difference between salaried exempt status and salaried nonexempt status is overtime pay. Exempt employees don't receive overtime pay; nonexempt employees do. The classification criteria for exempt and nonexempt workers are part of the Fair Labor Standards Act, or the FLSA, which is the federal law that governs minimum wage, overtime pay and working hours.

Hourly non-exempt employees are paid by the hour and are covered by FLSA rules and regulations.

Employer’s Obligations

Employers do not have to pay non-exempt, hourly, employees when no work has been performed as, by definition, they are “hourly” and only to be paid for hours worked. Employers must continue to pay salaried, exempt, employees if they work any time during a work week and are available to work the remaining days, whether they work or not.  In other words, if the workplace is closed for less than a week, and a salaried exempt employee has worked part of the week, he or she must be paid for the week.

As Hurricane Sandy hit at the beginning of the work week, if the employee did not work at all during the week, no pay is earned. However, some salaried exempt employees may claim or have been told to have worked from home. If they did work at home, they would be due their salary for the week.

If a written policy is currently in place that informs employees that they might not be paid during the week in which the employer is closed, it is likely no claim could be brought against an employer, nor will the employee expect payment. However, with employees returning to work after having been living without power, they may not fully appreciate that the storm also caused them to suffer financial losses; as a result it is ultimately up to the employer and his or her discretion to provide payment, if payment is not legally mandated.

Contact an Attorney

If you were forced to miss work as a result of Hurricane Sandy and did not receive payment, it is important to get informed and ensure your rights are protected. Many employers do not provide adequate information regarding the status of employees as well as the fine print of an employment agreement. If you feel that your rights are being violated and are owed money, contact an experienced employment attorney immediately to ensure you receive the money you deserve.