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Worker Absence During Storm Raises Questions for Employers

November 19, 2012

"A lot of employers, I think, are giving consideration for efforts to come in, and special consideration for success in coming in, and no consideration for not bothering to come in," Sparer said.

Gosseen said that employers might be liable for Workers' Compensation benefits if employees were injured trying to get to work, even if they never made it, though it would depend on the facts of each case.

If employees do get to work but aren't able to put in full days, their pay depends on their status. Hourly employees must be paid at least four hours per day at minimum wage, even if they only work for half an hour. Salaried employees must be paid for the full day.

Employees who had electricity and Internet access were able to work from home, which is compensable in the same way as work done from the office, attorneys said.

Working from home presents a special difficulty for hourly employees, since there is no way to track their hours.

"For the most part, they're going to be on the honor system," Schwartz said.

Sparer noted that, under the federal and state wage and hour laws, "the obligation for record-keeping falls on the employer, not the employee."

"It's incumbent upon the employer to seek that information if they have hourly employees who they believe have worked," he said.

Sparer also said that if any dispute does arise over hours worked remotely, courts and the U.S. Labor Department would likely take the employee's word, "unless the employer can show that it's totally nonsensical."

Another issue, from the employer's point of view, is a practical one—getting out paychecks. Technically, employers who fail to pay employees on time because of the storm run afoul of the law, Gosseen said. But he added he did not expect employers to face legal action over slight delays.

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