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Worker Absence During Storm Raises Questions for Employers

November 19, 2012

That applies to hourly employees, who will not be paid for hours they don't log, and to salaried employees, who may be asked to use leave days—vacation, sick, personal, or other kinds of leave—to make up for time missed.

Even when leave days are exhausted, employers can reduce exempt employees' pay for full days not worked, although "they have to tell people in advance that that's what they're going to do," said David Schwartz, a partner at Skadden, Arps, Slate, Meagher & Flom.

Gosseen added, however, that he did not expect most employers to pay their employees the minimum required under the law, or for a wave of wage-and-hour suits to appear in the storm's wake.

"Most employers will do the right thing," he said. "There's not enough at issue. You've just got to write off those two or three days. They're just gone."

Geoffrey Mort, an attorney at Kraus & Zuchlewski who represents employees, also said he did not expect employers to take a hard line on pay.

"Employers have been pretty good about this," he said, though he added that "it would not surprise me if there were some" who paid only the bare minimum.

Things become more complicated when employees try to work, but are partly or totally unable to do their jobs.

If employees fail to do any work, employers do not have to compensate them, no matter how much time or money they may have spent trying to get to work.

"Generally getting to and from work is not compensable time," Schwartz said.

"If an employee tries to get to work but fails, they haven't worked," Sparer said. Still, he said, many employers likely made accommodations for employees who could not get to the office.

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