13 Nov Tips for Complying with California Employment Laws During the Wildfires
As deadly wildfires make their way through California, thousands of residents have been forced to leave their homes. Worksites may be closed or damaged, and employees may need to take leave or work remotely.
Here are some compliance tips for employers to note during a natural disaster.
First, it’s important for employers to have a disaster plan. Employers should clearly communicate the plan to all workers and make sure they are aware of what the plan covers, said Barbara L. Harris Chiang, an attorney with Kaufman Dolowich & Voluck in San Francisco. The plan should outline how to safely exit the building in an emergency, what type of fire hazards may be present on the premises, and how to handle a situation should one arise.
“The plan should also include information on how the employer will communicate with employees in the event of an unplanned closure and who will communicate with the employees,” she added. “Additionally, it would be beneficial to predesignate which employees may work remotely in the event of an emergency.”
Businesses should have workers’ emergency contact information on file, said Michelle Lee Flores, an attorney with Cozen O’Connor in Los Angeles. As a backup plan, HR should consider having a print out of everyone’s personal cell phone numbers under lock and key and allow the main designated emergency communicator to have access to the print out.
Employers should also consider having a page on a password-protected internal website for employees to visit in times of emergency, she said. This page could be used to convey critical information, updates and other resources. Employers may want to post group medical insurance numbers on the emergency information page, too, in case employees need these details and don’t have access to their insurance cards, she added.
Remote work can create compliance challenges, particularly when dealing with nonexempt workers who are covered under the California Labor Code’s strict wage and hour laws.
Nonexempt employees in California are entitled to take certain rest and meal breaks during their shift and must be paid overtime premiums for hours worked beyond eight in a day and 40 in a workweek.
“Nonexempt employees should be reminded to follow all company time-keeping policies as if they were working at the office,” Chiang said. They should record all time worked and the start and end times for meal breaks and should take their rest breaks.
If the usual time-keeping systems are down, employers should consider old-fashioned practices, such as instructing employees to keep handwritten time records or to record hours worked using a spreadsheet on their computers, said Susan Groff, an attorney with Jackson Lewis in Los Angeles. The key point is to ensure all hours worked are recorded, even if they are recorded outside of the company’s time-keeping system.
A good practice would be for an employer to provide an e-mail address—either a designated one such as firstname.lastname@example.org or the address for a designated person—where workers can send multiple e-mails a day, if needed, to keep accurate records in real time of when they are working and when they were provided meal breaks, Flores suggested.
California law also requires employers to reimburse workers for reasonable business expenses—so employers should be aware of costs triggered by remote work. If employees must work using their home computers and Internet, then employees may be entitled to reimbursement for a portion of their Internet use charges, Groff said. “Likewise, if employees are communicating via their cell phones, then employees may be entitled to reimbursement for a portion of their phone usage.”
She noted that any stipends that were provided for mobile phone use before the wildfires may be insufficient if there has been a spike in remote work.
Office closures, reporting delays and systems issues during a natural disaster can make it difficult to timely and accurately run payroll.
If paychecks do not capture all hours worked due to reporting delays, the employer is obligated to pay for all hours that it knows the employee worked, Chiang said. If the employer has reasonable knowledge that the employee worked an eight-hour day, but did not receive a time card, the employer must still pay the employee for the time worked.
“Corrections should be made as soon as possible, both in making payment and correcting the itemized wage statements associated with corrected payments,” Groff noted.
Exempt employees generally must receive their full salary except in limited circumstances. “If there is a forced closure of less than a full workweek, the exempt employee must be paid the entire week’s salary and should not be required to use [paid time off] for the partial workweek,” Groff said.
If the business remains open and an exempt employee can’t work for personal reasons, the employer may reduce wages for full-day absences. Deductions for partial-day absences are not allowed, but employers may require exempt workers to use any accrued leave to cover a partial-day absence.
Leaves of Absence
Several leave laws may be triggered in the event of a disaster including:
- The Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA). If a business is covered by these laws, an employee may be eligible for leave if the employee or a family member has developed a serious health condition as a result of the disaster.
- The Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA). Even if an employee is not eligible for FMLA or CFRA, if the employee suffers either a physical or mental injury as result of the disaster, obligations under the ADA and FEHA may be triggered.
- School or childcare leave. Employers may be obligated to provide a certain amount of leave if school or child care is unavailable due to the disaster.
- Emergency responder leave. Volunteer firefighters, reserve police officers and emergency rescue personnel must be permitted to take a leave of absence to perform emergency duties, although an employer is not required to pay for the time off.
Furthermore, California employers are required under state and some city laws to provide paid sick leave. Eligible employees are entitled to take such leave for certain reasons, such as their own or a family member’s illness.
“The laws about paid sick leave and availability for employees remain even in a disaster,” Flores said.
Employers with sick leave plans that are distinct from a vacation or paid time off plan should be careful about allowing employees to use sick leave for reasons that are not covered by applicable state or local law, Groff said. For example, if an employee needs time away to rebuild his or her home, then that is not a sick leave-covered reason.
“To allow employees to use sick leave for reasons which are outside the scope of state or local law lends itself to a finding that the sick leave plan is really a ‘vacation plan’ and payable at termination,” she noted.
If an employer has analyzed that there is no applicable statutory leave for the employee’s absence, then the employer should consider providing personal leave, with the caveat that it should be fair in offering such leave to avoid discrimination claims, Groff said.