Q: Be­sides the phys­i­cal dev­as­ta­tion and emo­tional toll that Hur­ri­cane Har­vey is tak­ing on the Texas work­force, there are dis­rup­tions to pay­roll and ques­tions about an em­ployer’s obli­ga­tion un­der fed­eral and state wage and hour laws. What do em­ploy­ers need to con­sider?

A: Em­ploy­ers need to un­der­stand that the Fed­eral La­bor Stan­dards Act (FLSA) con­tin­ues to ap­ply dur­ing nat­u­ral dis­as­ters and re­cov­ery ef­forts. Hur­ri­cane Har­vey has pre­vented some South­east Texas em­ploy­ers from be­ing able to process pay­roll for their em­ploy­ees, and these em­ploy­ers may ques­tion whether they are ac­cru­ing penal­ties dur­ing this time. Al­though the FLSA and Texas La­bor Code re­quire pay­ment of wages on reg­u­lar pay­days, nei­ther law re­quires that pay­ment be made on any par­tic­u­lar day fol­low­ing the end of a pay pe­riod. Fur­ther, there’s no spe­cific penalty in place for Texas em­ploy­ers that miss a pay­day. There­fore, if em­ploy­ers have ex­pe­ri­enced prob­lems pro­cess­ing pay­roll due to the weather, they should work to en­sure all em­ploy­ees are paid as soon as pos­si­ble, but do not need to be con­cerned that penal­ties are ac­cru­ing.

Q: What about a nonex­empt em­ployee who has missed work due to the storm and its af­ter­math?

A: Em­ploy­ers only are re­quired to pay nonex­empt em­ploy­ees for hours ac­tu­ally worked. Thus, re­gard­less of whether an em­ployee is off work be­cause the busi­ness is closed due to the fa­cil­ity be­ing in­ac­ces­si­ble or un­us­able, or be­cause the em­ployee is un­able to come to work, the em­ployer has no duty to pay em­ploy­ees for this time (un­less, of course, some com­pany pol­icy pro­vides for pay in these cir­cum­stances). If a nonex­empt em­ployee per­forms work re­motely, the em­ployer is still re­quired to pay that em­ployee. Nonex­empt em­ploy­ees must be paid for all hours ac­tu­ally worked, whether at the busi­ness lo­ca­tion or re­motely.

Q: And for ex­empt em­ploy­ees?

A: Dif­fer­ent re­quire­ments ap­ply for ex­empt em­ploy­ees. If an em­ployer’s work­place is closed due to a nat­u­ral dis­as­ter, the em­ployer still must pay ex­empt em­ploy­ees their reg­u­lar weekly salary if the em­ployee per­forms any work dur­ing that work­week. If, how­ever, an ex­empt em­ployee is ab­sent for per­sonal rea­sons (i.e., the em­ployee can’t come to work be­cause he/she can’t leave home or is at­tend­ing to per­sonal is­sues), and if that em­ployee doesn’t have va­ca­tion, per­sonal days, or other paid time off that will cover the ab­sence, the em­ployer can deduct from the em­ployee’s pay for any full day missed. Em­ploy­ers mustn’t deduct from an ex­empt em­ployee’s salary for par­tial days missed, al­though they can deduct from paid time off bal­ances for par­tial day ab­sences. Ex­empt em­ploy­ees need to be paid their full weeks’ salary for every week in which they do any work, re­gard­less of whether the work is per­formed at the em­ployer’s place of busi­ness or re­motely, un­less the em­ployer can show that the em­ployee was ac­tu­ally “ab­sent” (i.e., not work­ing re­motely) dur­ing one or more of those days.

Gaylan Towle II is a mem­ber of Crowe & Dun­levy’s la­bor and em­ploy­ment prac­tice group.

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