NEWS RELEASE
11/2/2007
Are Workers Entitled To Be Paid For Time Missed During The Wildfires?
Thomas Jefferson School of Law Professor Explains the Law
SAN DIEGO --Not only did San Diego’s October wildfires displace hundreds of thousands of people but they caused a significant number of people to miss at least one day of work.
Now many of the people who didn’t report to work during the fires are wondering whether they are entitled to be paid for the time they missed because of the evacuations or other fire-related circumstances.
Professor Arnold Rosenberg of Thomas Jefferson School of Law says that a number of factors come into play under California labor law when it comes to the issue of whether a given employee is entitled to be paid for fire-related absence. According to Professor Rosenberg, some employees, depending upon the circumstances, may have to use vacation days or personal leave time in order to be paid for time missed due to the fires.
An important distinction, Professor Rosenberg says, is whether an employee is exempt or non-exempt of the requirements of the California Wage Orders.
“Executive, administrative and professional employees are considered exempt employees – that is -- exempt from requirements of the California Wage Orders including, OT and limitations on hours worked,” according to Professor Rosenberg. “There are several other categories of exempt employees as well. To be exempt, employees must earn a monthly salary not less than $2600 for full-time work.”
Professor Rosenberg outlined some of the circumstances and how they apply to both exempt and non-exempt employees.
Exempt Employees:
If the employer shut down for part of the week (but less than the full work week) during the fire, and an exempt employee did any work during that week, the employee is entitled to be paid for the full week despite the shutdown.
However, if the employer shut down for a full work week (or more), the employer doesn’t have to pay exempt employees for the week, as long as they are paid at least $2,600 for the month. In that event, exempt employees could opt to use accrued vacation time or other paid time off to avoid losing pay for the week, if permitted to do so under the employer’s personnel policies and if they have sufficient vacation time or other paid time off available.
If the employer was open for business but an exempt employee was unable to come to work, or chose not to come to work, for a full day, and did no work on that day, the employer may require the exempt employee to use vacation days or other paid time off in order to be paid for the time not worked. The employer has the option to not pay these employees if they do not have sufficient paid time off available or are unwilling to use it.
If the employer was open for business and an exempt employee missed only part of a day’s work, for any reason, the employer may require the exempt employee to use part of a vacation day or other paid time off only if (1) the employee missed four hours or more and (2) a written personnel policy advised employees in advance that exempt employees would be required to use accrued vacation time or other paid time off for a partial day’s absence. Otherwise the exempt employee is entitled to be paid for the full day.
Non-Exempt Employees:
Generally, an employer does not have to pay a non-exempt employee for hours not worked, regardless of the reason why the employee didn’t work. Thus, if the employer remained open for business, non-exempt employees who couldn’t come in to work due to the fire are not entitled to be paid, though they could use accrued vacation or other paid time off if they have that right under the employer’s personnel policies.
If the employer did not notify employees in advance that it would be closed and a non-exempt employee actually reported for work but was told to go home or was given less than four hours’ work, normally the non-exempt employee would be entitled to be paid for half the normal scheduled working hours for that day (but no more than four or less than two). This is called “reporting time pay.”
However, in certain cases the fires might give an employer justification for not paying reporting time pay to non-exempt employees who actually showed up for work but were sent home. If the employer could not continue to operate due to the recommendation of civil authorities, for example, if the employer was in a mandatory or voluntary evacuation zone) or due to a power or other utilities outage, or if an Act of God (such as the fire) otherwise made it impossible for the employer to continue to operate, the employer may be able to avoid paying
reporting time pay. On the other hand, an employer that was not in a fire zone, but chose to shut down because too many employees had trouble getting to work or because the Mayor asked people to stay off the highways, might have to pay reporting time pay to non-exempt employees who were not notified in advance of the closure and showed up for work.
In some non-evacuation areas, there was a significant problem with smoke. Could an employee claim an unsafe working environment and still be paid if he or she left work? This is unclear, but it is possible that employees with asthma or other medical conditions making them particularly susceptible to the smoke might be able to do so.
There may be different requirements for unionized employees covered by collective bargaining agreements (which are generally exempt from wage orders) and some public employees. For example, certain government employers allow something called “catastrophic leave donations” that might allow an employee, forced to take time off because of loss of his or her home in the fire, to have paid time off donated to them by co-employees. Different rules also may apply to agricultural workers, certain airline employees, and several other industries that receive special treatment under the California Wage Orders.
Employees who have questions about their right to be paid for time lost during the fires should contact the California Division of Labor Standards Enforcement or the office of the California Labor Commissioner, http://www.dir.ca.gov/dlse/.
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