Workplace Woes During Weather Worries

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Winter is here, at least in most parts of the United States.  Snow, ice, wind, and dangerously low temperatures are causing workplace woes from coast to coast.  Not only are offices shutting down, entire cities and communities are closed.  And, due to airline flight cancellations, employees attempting to return to work, or travel for business, have been grounded.  During situations like these, and other natural disasters that cause workplaces to close, employers should be careful to address several key workplace issues ranging from telecommuting, to employees using of personal devices to conduct work, to wage payment.

Can employees telecommute, and do employers want them to do so?

When a company makes the decision to shut the office due to inclement weather employees should stay home.  When at home, however, there are some employment law consideration about telecommuting.  Many companies already have telecommuting policies and procedures.  So, a weather-related shutdown may be something that the company can handle with relative ease.  For other companies, however, telecommuting may not have been formalized, and that’s where problems will likely arise.

Companies should not just assume telecommuting is a good idea for their business.  There are many factors to consider, including but not limited to, diminished ability to keep confidential work confidential, home-office safety and Occupational Safety & Health Administration (OSHA) issues, and record-keeping/wage and hour issues.  In my March 2013 post for Maximize Social Business, I examined some of these issues.

What if employees use their own home computers and mobile devices?

A related issue that employers need to plan for is whether the company allows employees to use personal computers, tablets, and/or  mobile devices to perform work while the office is closed.  Again, some companies have planned in advance by considering Bring Your Own Device (BYOD) policies, and/or other policies allowing or prohibiting the use of personal equipment.  Some of the primary problems with allowing employees to use their personal devices include the following:  the security of the equipment, the ability to maintain confidentiality of information/data, and unauthorized access to company information.  In my September 2013 post titled “Workplace BYOD Policy:  One Size Does Not Fit All,” I address these and other issues in more detail.

One further issue with employees using personal equipment was recently addressed by federal courts in 2013.  Here is the scenario:  Employees use personal equipment to perform work.  Later, a dispute arises between the employee and the Company, or between the Company and a third party, where the work the employee performed on his or her personal equipment is relevant.  In order to avoid sanctions in litigation, the company will be required to preserve all evidence related to the litigation, including electronic evidence that may be stored on an employee’s personal tablet, laptop and/or phone.  The employee(s), of course, will be less-than-thrilled to turn over their equipment to the Company and/or to the Company’s attorneys to isolate any relevant evidence.  While the employee’s personal data should avoid production in any litigation, separating the personal data from the business data will undoubtedly give some employees cause for concern.

In a case from the federal district court in Puerto Rico, the Court found that a company had breached its duty to preserve relevant email from personal email accounts of former employees.  The case is Puerto Rico Telephone Co., Inc., v. San Juan Cable LLC.  Luckily for the employer, the Court did not sanction the company for its breach since the lost evidence was obtained by other methods so no party was harmed by the company’s failure to preserve evidence.

Do companies need to pay employees when offices shut down due to weather?

While not specifically related to social media in the workplace, wage payment is a particularly important issue when offices close for unexpected reasons.  Most employees feel they should be paid because they are ready and willing to work, but the office is closed due to factors beyond their control.  Most employers, however, will take a hit to their bottom line by an office closure of even one day, and having to pay wages to workers who performed no work would drop the bottom line even further.

Whether an employer must pay employees even if the office is closed due to weather or other unexpected reasons, depends primarily upon whether the specific employee is “exempt” or “non-exempt.”

In essence, for “non-exempt” employees (employees who are entitled to overtime pay, and who are commonly referred to as “hourly”) an employer need not pay wages when the office closes.  However, if the non-exempt employee actually does perform work (telecommuting, for example) then the employer must be sure to pay for work actually performed.  Of course this requires good record keeping.

For “exempt” employees (sometimes known as “salaried” employees), if the employee has performed work that week, then the company cannot deduct the missed work day from the exempt employee’s salary.  This is so because then the exempt employee will lose his/her exempt status for that week.  Also, depending on state laws, employers may be allowed to deduct hours from an exempt employee’s vacation/PTO banks to cover the absence, including if the absence is only a partial day absence.  However, even in those states, if the exempt employee does not have enough time banked in their vacation/PTO account, the employer still may not deduct wages.  These complex rules and issues often cause headaches for employers.

There are many more wage and hour issues, and a discussion of more of them are beyond the scope of this article.  However, many of the wage and hour issues will depend on the answers to these basic questions:  did the employee perform work even when the office was closed, and how well did the employee record his/her time and/or how well can the company calculate how much work the employee performed.  The last thing an employer wants is to face a claim for unpaid wages after it already dealt with unexpected office closures, lost productivity, and other weather-related worries.

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

James Wu
James Y. Wu contributes a monthly column on Social Media and Employment Law. For nearly 20 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University. +James Wu
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