Ian Alert: If My Office Is Closed Due to a Hurricane, Am I Entitled To Be Paid?

It's that most awful time of the year, that is, time to re-run this popular and necessary column. I hope you make out okay in Hurricane Ian and suffer no damage. However, you may be wondering if you're getting paid.

Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement (so maybe it’s a good time to start complaining to your legislators). If it veers nortn, South Carolina has some protections for state employees but none that I've found for private sector employees.  North Carolina does have a law regarding employer adverse weather policies (they aren't required to have them though):

If an employer does establish an adverse weather condition policy, then pursuant to N.C.G.S. §95-25.13(2), the employer must: "Make available to its employees, in writing or through a posted notice maintained in a place accessible to its employees, employment practices and policies with regard to promised wages." The employer must comply with its own adverse weather policy until such time as the employer changes its policy in writing, notifies its employees of such changes prior to the effective date, and does not take away retroactively any benefits already earned, pursuant to N.C.G.S. §95-25.13(3).

Disaster Unemployment Benefits: If your state is declared a disaster, you may qualify for disaster unemployment assistance. If your state gets hit, here's where to start searching to see if you can get disaster unemployment assistance. It may take a couple days to update, so keep checking. I checked before posting and the Ian-affected areas weren't there yet.

If you’re hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

Make Less Than $35,568? Starting January 1, You Get Overtime

The Department of Labor has just raised the minimum amount employees must make to be considered exempt for overtime, from $23,660 to $35,568, starting January 1. You still have to also meet one of the exemptions, such as administrative, professional, executive, computer professional, or outside sales, and still have to be paid on a salary basis rather than hourly.

This new rule will add about 1.3 million workers to the employees entitled to be paid overtime if they work more than 40 hours/week. So yay!

Here's DOL's summary of the rule's effects:

• raising the “standard salary level” from the currently enforced level of $455 per week to $684 per week (equivalent to $35,568 per year for a full-year worker);
• raising the total annual compensation requirement for “highly compensated employees” from the currently enforced level of $100,000 per year to $107,432 per year;
• allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level, in recognition of evolving pay practices; and
• revising the special salary levels for workers in U.S. territories and the motion picture industry.

While this is good news, I'd note that President Obama was going to raise the amount to $47,000, but this administration stopped that from happening. So if you make between $35,568 and $47,000, you should reflect your displeasure when you vote next year.

This new rule won't be automatically increased for inflation, so it may be decades before we seen another increase. Enjoy it while you can.

If The Office Is Closed Due To A Blizzard, Do I Get Paid?

Now is usually when I run my posts about how I did on my predictions from last year, but with the snowicane bombarding the Northeast and even Florida, I thought I'd better re-run this ever-popular and necessary piece.

Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement and neither does Texas, (so maybe it’s a good time to start complaining to your legislators).

Disaster Unemployment Benefits: If you live in in an area declared a disaster area, you may qualify for disaster unemployment assistance. I don't think any areas have been declared yet, but here's where to start searchingto see if you can get disaster unemployment assistance.

If you’re hit or have already been hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.

Ask Donna: Answers to AOL Jobs Reader Questions On Wages and Overtime

AOL Jobs readers have LOTS of questions on wages and overtime. I answered a couple questions in my column.

One reader asked:

I have a question pertaining to time. At my current employer, we are technically salaried but we clock in and out for time. Although our boss states it's to be able to calculate PTO, he takes minute for minute once we clock out if under 40 hours. If we are over 40 hours, we get PTO and not over-time. The PTO is minute for minute. Also, if we work through lunch, he will take the hour away stating he "has to". so basically our time card won't be a true reflection of our time worked because he always takes an hour for lunch whether you take it or not. Is this illegal? Should i contact the DOL?

Another reader asked:

I am an LPN and I work for a ministry in Tennessee. They have demanded that we clock out at our designated time even tho we are not finished with our work. They want us to finish our work "off the clock". I would like to know if this is legal, and what can be done about it.

For my answers, read my article at AOL Jobs.

Does My Employer Have To Pay Me Even If I'm Illegal?

I received this question from a reader:

I'm in the process to get my green card. I worked for a guy for few weeks. He knew that I didn't have my EAD by that time. He doesn't want to pay me. I have been trying to get my payment over 2 weeks. Yesterday he sent me a text saying "go f**k yourself. if you contact me again I will notify the authorities" What can I do?

The quick answer is that, yes, your employer has to pay you even if you worked without the proper permit or are in the country illegally. If you are a foreign worker in the U.S., you have some hoops to jump through to work legally. Still, that doesn't excuse your employer from paying you for work performed. That being said, wage theft among undocumented workers is very common.

The United States Department of Labor has a program called "We Can Help" specifically directed at helping undocumented workers get paid. The Fair Labor Standards Act, which requires payment of minimum wage and overtime, applies to legal and illegal workers alike.

Undocumented workers, however, will not be able to recover back pay for time not actually worked or be reinstated to jobs if they sue for discrimination, unfair labor practices, or under other employment laws. While employers still can't discriminate based on race, age, sex, etc. the remedies undocumented workers can receive under many employment laws are limited.

Even though undocumented workers have legal rights, filing suit or complaining to the Department of Labor can be risky. There have been reported cases of undocumented workers who stood up to thieving employers only to face deportation. Employers who use this strategy put themselves at risk. Homeland Security is cracking down on employers who hire undocumented workers. Employers who break the law face sanctions including jail time. You might point this out to an employer who tries to blackmail you out of your pay.

Some Florida counties have wage theft laws that also protect undocumented workers. Employers can face double or triple damages if found to violate these wage theft laws. Many states and local governments have additional protections for employees whose employers don't pay wages when due.

If your employer is stealing your wages, contact the Department of Labor or an employment lawyer in your state to discuss your rights.

10 Tricks Employers Use To Cheat Workers Out Of Overtime

Most employees are entitled to be paid overtime for any hours worked over 40 in one week (and no, your employer can't average two or more weeks together). Unless you work for a tiny and purely local employer, or fall within a specific exemption, your employer is legally required to pay you time and a half for all overtime worked. But some employers, in an attempt to cut costs, are using tricks to avoid paying overtime. As reported by AOL Jobs and USA Today, the number of lawsuits filed by employees alleging that they were owed overtime pay is skyrocketing; there was a 32 percent increase last year, compared to 2008.

As an employment attorney, I've seen lots of maneuvers, but below are the 10 most common tactics that I've seen employers use to cheat workers out of their hard-earned overtime pay:


To read more, see my article on AOL Jobs.

Salaried Workers, Do You Get Overtime Pay? Odds Are You Should!

Just because you're salaried doesn't mean you're automatically exempt from overtime. Most employees are entitled to be paid overtime (1.5 times your regular hourly rate) under the Fair Labor Standards Act for any hours worked over 40 per week. Some employees are exempt, but not nearly as many as most employers and employees assume.

If your employer is treating you as exempt from overtime, odds are they got it wrong. Here are some ways you might be exempt from overtime.

Read more on AOL Jobs.


Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!

Supremes Pretty Consistently Oppose Retaliation

The Supreme Court isn’t exactly known for being pro-employee. But it has been fairly consistently pro-employee in one area: retaliation. Yesterday’s ruling in favor of an employee who complained verbally about a Fair Labor Standards Act (FLSA) violation is just one of a series of recent rulings that demonstrate employers need to beware of retaliating.
Oral complaints are protected: In yesterday’s Kasten v. Saint-Gobain Performance Plastics Corp, the Court found that the anti-retaliation provision of FLSA which applies to people who “file” complaints applies even where the “filing” was purely a verbal complaint.

Retaliation against a fiancé is illegal: Earlier this year, in Thompson v. North American Stainless, LP, the Court ruled that the fiancé of an employee who complained about sex discrimination could bring a retaliation claim when he was fired shortly after she complained. It’s, “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Yeah. It was pretty obvious, wasn’t it?

You don’t have to be the one who complained to be protected: In 2009, in Crawford v. Metropolitan Government of Nashville, the Court decided an employee who was interviewed in a sexual harassment investigation was protected: “The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” Gotta love this one since she won a $1.5 million verdict last year after the case went to trial. Oh, and because the majority opinion referred to the employer’s position as “freakish.” Well, not quite their whole position, but the word “freakish” was used.

Race discrimination statute prohibits retaliation: In 2008, the Court in CBOCS West, Inc. v. Humphries found that 42 U.S.C. § 1981(a post-Civil War race discrimination statute) prohibits retaliation.

Age discrimination statute prohibits retaliation: The same day in 2008, the Court in Gomez-Perez v. Potter, Postmaster General found that the Age Discrimination in Employment Act similarly prohibited retaliation against a federal employee.

Retaliation other than termination is illegal: In 2006, the court decided Burlington Northern v. White said: “We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

So while some other employment laws may be slowly eroding away in favor of employers, the anti-retaliation laws are alive and well. Does this mean employees can run to the courthouse at will now? No. Employees still need to be concerned about retaliation. You need to know your rights before you complain.

Donna’s tips:

a. There is still no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. That means objecting to something that’s illegal under a statute such as Family and Medical Leave Act, Title VII, state discrimination laws, wage/hour laws, OSHA violations, or some other legal violation.

b. If you’re thinking about bringing a claim under a whistleblower law, there are lots of hoops you have to jump through, so know your responsibilities and rights under the whistleblower laws before you complain.

c. I did a post about when you should think about reporting coworkers and how to do it. Despite yesterday’s ruling about oral complaints being protected, I still suggest you put your complaint (if it’s a legally-protected complaint) in writing so the employer can’t deny it later.

d. General harassment, hostile environment and bullying are not illegal, so you’re not protected from retaliation if you report them.