Help Wanted: Worker pay in weather disasters

When inclement weather strikes and employees can't get to work or their company closes, the question that often arises is, "Should the workers be paid?" The answer depends on whether they are nonexempt, which generally means hourly, or exempt, a category of workers who must be salaried. The Help Wanted column tackles several of these questions below.

Employees who didn't get paid because they missed work might have an option for recouping the lost income. Nassau and Suffolk are among the New York counties declared a disaster area because of Sandy. So residents who lost part or all of their income can apply for disaster unemployment assistance.

The state Labor Department looks at the claims on a case-by-case basis. The general unemployment benefits maximum is $405 a week. So employees who made at least that amount, even with lost days, probably wouldn't qualify. The application deadline is Dec. 3.

For more information, call the state Labor Department at 888-209-8124.

Federal labor laws are strict when its comes to docking the pay of exempt workers, those workers who fall into the executive, administrative, professional and outside-sales categories. They are exempt from overtime and even minimum-wage regulations. But in exchange, employers generally have to guarantee them a salary of at least $455 a week. So if the company closes, it has to pay them.

"If it's an exempt individual, they have to pay their salary in order to retain their exemption," said Irv Miljoner, who heads the U.S. Labor Department's Long Island office.

When exempt employees miss a full day for personal reasons, employers can deduct from their paid time off. If the employees have run out of those days, the company can dock their pay. It can do both without asking the employees' permission.

But when the company is closed, it has to have the employees' permission to use their paid time off to cover missed days, said Miljoner, citing case law.

Superstorm Sandy has disrupted so many workplaces that the U.S. Labor Department is temporarily forgiving isolated infractions, Miljoner said.

For example, if payroll-processing problems caused exempt employees' pay to be delayed by a week, something that would normally trigger a violation, the department probably wouldn't go after the company.

"If it's just one week or one pay period, and it's an isolated instance and proper payment resumes when the emergency is over, we consider that an isolated incident, and we would not find a violation," Miljoner said. "But the employer should correct the problem and pay the person as soon as possible."

Even though you are exempt, your employer can require you to make up the time, Miljoner said. If you fell behind on a project, for example, the company can ask you to stay longer.

"An employer may require any employee to work any amount of hours," Miljoner said.

As for requiring you to use a sick or personal day to cover your pay for the day the company closed, that's a no-no without your permission. See the question above.

But here are some provisos, said employment attorney Richard Kass, a partner at Bond Schoeneck & King in Manhattan.

First, "An exempt employee can only be docked in full-day increments," he said. "Therefore, she can be docked only for days when she does not do any work at all.

And secondly, "The employer should be careful to make sure that the employee hasn't done any work from home," Kass said. "Work is work, even if it is performed at home on a cellphone or laptop, by the light of a flashlight."

For more on disaster unemployment assistance, go to http://bit.ly/Q90na7. For more on exempt employees, go to http://1.usa.gov/sQRzCo.