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Worker Absence During Storm Raises Questions for Employers

By Brendan Pierson Contact All Articles 

New York Law Journal

November 19, 2012

The South Ferry subway station at the tip of Manhattan was one of many that were completely flooded by Hurricane Sandy, making commuting nearly impossible.
MTA

While Hurricane Sandy has raised questions about how employers should compensate employees whose ability to work was severely disrupted, attorneys say they don't expect to see many of those questions tested in court.

In the wake of the storm, businesses up and down the East Coast were closed for a host of reasons, including lost power, physically damaged buildings, and disrupted transportation systems that made it impossible to commute.

Other businesses continued to operate with limited staff or with employees working remotely. Some remain closed as the recovery continues.

Neither New York nor federal law, however, makes explicit provisions for affected employees, unless they are protected by a contract.

"If you don't work, you don't get paid," U.S. Department of Labor investigator David An told an audience of employers at a Nov. 14 panel hosted by Arent Fox.

Still, employment attorneys say they expect employers to be understanding in light of the situation.

Robert Gosseen, a partner at Ganfer & Shore, spoke for most of those interviewed: "Many employers, I suspect, will be making accommodations."

The range of situations that arose after Sandy were often unanticipated, and the answers to the questions they raise may depend on whether those affected are hourly employees subject to overtime pay laws, or so-called "exempt" or salaried employees, who are not.

The simplest scenario involves an office that is totally closed.

"The tough line is, 'You weren't here working, we didn't plan for this, we made no money, you made no money," said Robert Sparer, a partner at Clifton Budd.

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