It’s Sunday evening here in Connecticut.  If the forecast goes according to plan, I may not have power tomorrow to write about the storm.

Oh, Sandy!

Governor Malloy announced this evening that all non-essential state workers are not to report to work on Monday. But those who listened to his news conference know he went beyond that.

He stated that “This is the highest threat to human life our state has experienced in anyone’s lifetime.”

What does that mean, though, for private employers? Well, despite the ominous warnings, he has not ordered all private employers to close.  Under Conn. Gen. Stat. Sec. 28-9, he may have broad powers if he declares a state of civil preparedness emergency to do so.

Indeed, under subsection (a), he is “authorized and empowered to modify or suspend in whole or in part, by order as hereinafter provided, any statute, regulation or requirement or part thereof whenever in his opinion it is in conflict with the efficient and expeditious execution of civil preparedness functions.”

But that’s not happening here.  At least not yet.  (If you’re curious on more about the state’s Disaster Plan, you can download it here.)

Thus, its up to each employer to decide what to do. Some, like our office in Bridgeport, will have no choice but to close because of the storm surge and flooding. Others will also need to close because of the expected power outages.

Whatever you decide, understand that opening or closing has its own set of consequences. Employees who are required to work tomorrow may feel like they are being put in harm’s way. While others may not get paid if the office is closed.

This storm is unprecedented (at least that’s what various articles like this one suggest.) Employers should be conscious about following guidance from officials and following the letter of the law. This disaster will pass, but employers who don’t follow the rules, are likely to have issues resurfacing down the road.

Stay safe everyone.

 

So, by now (Friday morning), your preparations at your workplace should be in full swing.  The latest forecasts this morning call for a landfall on Sunday somewhere along the Connecticut coast (perhaps Bridgeport) with hurricane impacts felt throughout the state.

Irene is Coming

Connecticut has set up some new resources since my post yesterday specifically on Hurricane Irene.  The 8 a.m. update is posted here.   It is frequently updated and also has a list of people to follow on Twitter.

But so far, it’s not easy to find out about all storm-related workplace laws in one place on the state’s website. (How about an update Department of Labor?)

While a blog post cannot address all of the FAQs that might come up, I thought it would be helpful to discuss a few wage/hour issues. As always, consult with your legal counsel/advisor on any specific issues you have and how these laws might apply to your workplace.

Reporting Time or Minimum Daily Earnings Guaranteed: Connecticut has a “reporting time” obligation (as do several of our neighboring states). It is contained in various regulations and applies to certain industries like the “mercantile trade”. You should already be aware of this law, but it has particular application in storm situations where people may not work full shifts.

Continue Reading Hurricane Irene: “Reporting Time” Pay and Other Wage & Hour Issues for Employers

With the snow today, my colleague Michael Lavelle has this timely post about call in pay, particularly as it relates to weather-related jobs.  My thanks to Mick for this contribution, as always. 
 
The winter season brings more weather-related emergencies, and often requires maintenance employees or replacement staff to be on-call with beepers or cell phones. 
 
The wage-hour regulations for on-call situations are pretty straight-forward.  Employees "waiting to be engaged" are not on work time, although employees "engaged to be waiting" are. 
 
This means that if an employee’s on-call obligations are too strict – for example, he has to wait at a particular place, or it is virtually certain that he will be called in, maybe more than once – he must be paid to be waiting. 
 
If he able to use his time productively for personal reasons, only being required to carry a beeper or cell phone, he is not on working time.  
 
(For those interested in the actual federal regulatory reference, you can check out 29 CFR 785.17 of the Code of Federal Regulations.)
 
And what happens if the employee is called?
 
There are two situations:
  • If the called employee goes to his usual place of work, he is paid only for his actual time at work, as in his usual workday. 
  • If he is called to a customer’s location, and so goes a greater distance than his usual commute, he should also be paid for travel time. (29 CFR 785.36).
 
But what about incentives to induce an employee to accept, or at least not resent, the possibility of being called out in the middle of the night?
 
These are not required by law, but many employers, especially in 24-hour service industries like health care, have special on-call pay as part of their overall compensation plans. 
 
Some options are stipends, like $25 per day or $200 per week; premium pay such as overtime or even double-time regardless of whether the employee exceeded 40 hours in that week; or minimum pay regardless of the amount of time spent at work.  For salaried employees, a special bonus may be paid without destroying the employee’s exempt status.
 
What’s the Takeaway for Employers?
 
For employers with on-call needs, the bottom line as always is doing what is necessary to recruit and retain desirable employees, and to maintain employee morale.  A $50 minimum may be a small price to pay for having an employee come back to his workplace at 2:00 am, rather than telling the boss the next day that his dog ate his beeper.

Tropical Storm Danny (no relation) formed in the Atlantic Ocean late this morning.  It’s still days away from a potential impact on the East Coast but Connecticut IS within the forecasted track’s "cone"

Whether it strengthens to a hurricane and hits Connecticut, or meanders harmlessly into the Atlantic Ocean is for the weather forecasters to figure out.

However, long-time Connecticut residents will remember the impact that the last hurricane to hit Connecticut — the infamous Hurricane Gloria nearly a quarter of a century ago. Hurricanes and Connecticut do not mix all that well.

So, time to dust off (or, in some cases, create) your hurricane policies — just in case.

Over a year ago, I discussed some of the common questions that arise during a storm:

As an employer, suppose some employees don’t show up for work, allegedly because they are home preparing for the hurricane, can you fire them? For the most part, yes. Connecticut is an at-will employment state.   Whether you will want to fire them, though is an entirely different question.

Do I need to pay employees who don’t show up for work for the same reason? That will depend on whether the employee is exempt or non-exempt.  Non-exempt (or hourly) workers are typically paid for time worked, so no work, no pay.  But for exempt (salaried) workers, they will need to be paid if they worked during that week, though the employer may insist that the employee be charged vacation time or paid time off. 

Can I force my employees to work during the storm? The legal answer is that for the most part, the answer is yes. But in practice, most employers take a different approach that depends on the type of work that they are doing.  

Some employers who need to maintain operations 24/7 (a hospital, hotel, etc) may want to designate certain employees as "essential".  Others may decide that they can deal with telecommuting employees for a half-day.  But establishing a policy at the outset so employees know what to expect is essential to avoiding problems later on.  Ultimately, setting reasonable expectations (asking employees to call in if late, and having them make up for lost time) may be all that is needed for some.

However, for extremely serious storms (perhaps a Category 3 Hurricane), the Governor has the power to suspend certain laws under Conn. Gen. Stat. Sec. 28-9.  This is rarely invoked. In non-emergency situations when the Governor says that "non-essential" state workers should stay home, private employers should understand that this applies only to state workers and they are free to set different rules. 

We have closed our business during the storm; do we need to pay employees? The legal answer again depends on whether the employee is an exempt or non-exempt worker.  But if you follow the letter of the law, there are serious ramifications for employee morale.  It will obviously be challenging to some small employers, but paying employees in those times of need may pay dividends later for employee morale as well.

Some other steps you can take this week:

  • Get a list of employee cell phone numbers. In the event of widespread power losses or phone outages, you still may be able to send text messages to them.
  • Be sure to seek out legal counsel where appropriate for specific legal questions that may arise in this context.  For instance, there may be contractual obligations by an employer or other laws that may apply to your specific situation.
  • Stay informed. The National Hurricane Center puts out no-nonsense forecasts without all the hype that sometimes accompanies these types of storms. 

Remember last year’s mess on the roads? If you recall, lots of Hartford-area employers sent their employees home early during a snow storm — creating gridlock and lots and lots of headaches. As a result, Gov. Rell set up a task force to coordinate with the largest area employees on their dismissal patterns. 

Tomorrow will be the first big test of that, with the forecast calling for heavy snow during the afternoon and evening commute.  

But suppose you’re not one of those employers affected by the task force, what are some issues to think about (which follows up a post I did last year on the subject as well).  If you don’t already have an inclement weather policy (or even if you do), you can ask yourself:

  • Will employees be paid for the time when the business is closed?
  • Will employees be paid if they don’t report to work due to inclement weather when the business is open?
  • Can an employer discipline or discharge and employee for failing to report to work due to weather conditions when the business is open?

Quite simply, absent a declaration of a state of emergency, private employers are free to determine their own policies for handling snow storms (or another natural events.) 

Some employers may ask — what should I do for our company? The answer is, of course, it depends. Some employers who need to maintain operations 24/7 (a hospital, hotel, etc) may want to designate certain employees as "essential". Others may decide that they can deal with telecommuting employees for a half-day.

But establishing a policy at the outset so employees know what to expect is essential to avoiding problems later on. Ultimately, setting reasonable expectations (asking employees to call in if late, and having them make up for lost time) may be all that is needed for some.