Episode 168: Compliance During Emergency Conditions

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Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, the Labor Law Helpline manager and Employment Law Council with the California Chamber of Commerce. Hello, listeners. Well, it seems the last few days and weeks have brought quite a wet, windy and wild start to 2023 for us here in California. Up here in Sacramento, trees are down all over the place, power comes and goes for many of us, and flooding has been so extensive in the state that it has made national news. Of course, as with many subjects that touch our own personal lives, this type of natural disaster and emergency has specific impacts on our workers and workplaces. And there are some compliance issues that employers should keep in mind for this and really any future disaster, whether it's another flooding event, wildfire, earthquake, or, you know, another emergency condition. So to talk through these issues, we welcome back one of Cal Chamber's Labor Law helpline experts, Ellen Savage. Good to see you again, Ellen. I hope you are staying dry and safe.

I am, thank you, Matt. I hope you are as well.

Yeah, I think we're starting to get used to it now that it's persisted for so many weeks. It's wild. I've never seen anything like it. But, you know, we're faring okay here in Sacrament after a crazy weekend, but I know the rest of the state's still going through some things that we'll actually talk about here on this podcast, Ellen. So let's get started then. And of course, as you and I know, paying employees constantly creates issues on the helpline, just generally. And emergency conditions are no strangers to wage and hour issues. So let's just start with the basics here with our non exempt or hourly employees. When we have emergency conditions or disasters like the flooding and the power outages that we're seeing currently up and down the state, what issues should employers be mindful of under these circumstances?

Well, as you said, they can raise all kinds of tricky wage and hour questions. So as you know, of course in California, non exempt hourly employees have to be paid for all the time they actually work. But in this kind of emergency situation, work doesn't always just mean the work they normally do. So work also includes any time that you might require an employee to wait for work. So during a strong storm system, maybe say the power goes out and you might tell employees, hey, hang tight for a bit and let's wait for everything to come back on. And so we've got to pay these folks to wait. U.S. supreme Court weighed in on this in a really old court case before you and I were ever around Matt. And they said, quote, you can hire a man to do nothing or do nothing but wait for something to happen. And that's pretty much what we sometimes are doing during these emergency situations. We tell an employee to wait out the power outage. And even though they're sitting in the break room having a snack, checking Facebook because you told them the wait, they're still on the clock, they're still getting paid. Also, you're not exempt, sometimes have to be paid for time they don't work in these emergency situations. Sometimes yes, sometimes no. California has reporting time pay when you send an employee home before they've worked at least half their shift unless certain exceptions apply. And those might include some of the emergency conditions we're going through right now.

Okay, Ellen. So there's a lot there to unpack. And I like us to kind of tether onto this idea that with our non exempt, our hourly employees, they work, they get paid, they don't work, they don't get paid. And whether they are working is really that control issue you talked about. We can make somebody sit around and wait for work, but because we're making them do that, we have that control. And so with this reporting time pay situation, and this is one of those things as you describe, we have to provide payment when they don't work because the policy behind it is they have this expected shift. We can't just yank the rug out from under them and send them home without their expected hours worked because they've made arrangements to be here at work. But there are exceptions, as you said, and certainly there seems to be some instances where the current situation we have now with torrential rains and incredible wind speeds is making work more difficult in some cases. Can you talk about when reporting time pay might apply and might be excused under these circumstances?

Sure. So let's talk about two different situations. So like right now, it's raining like mad and your office roof starts leaking and there's puddles and drips everywhere and you finally just throw in the towel. No pun intended. Now that I think about it. You close up shop, you tell your employees to go home, it's just wet, there's puddles everywhere. So they've worked less than half their scheduled shift when you send them home. California's reporting time pay would probably require that they get paid for half of their scheduled shift. So if I'm in that situation, I'm supposed to work eight hours from 8am to 5pm you send me home at 11am you'd have to pay me for the three hours I actually worked, plus one extra hour of reporting time pay. That would get me to four hours of pay, which was half of what I was supposed to work. Now, there's some additional minimums and maximums. We're not going to get into those here, take us forever. But you can see them on our HR California website.

So let's compare that to that same situation. It's raining like mad, but now the power goes out. We're all just sitting there. It's dark, it's cold, it's not fun. So now there's an exception to the reporting time pay requirement that we just talked about if you do send me home. And that's because there is what we call a failure of public utilities. So in this case, because the electricity that's gone out, the power, because it's a public utility, California law says if you send me home due to a failure of a public utility, you just have to pay me for the hours I've actually worked until you sent me home. There's no reporting time pay requirement. We get similar exceptions in the law. If, like, the police or the fire department come knock on the door and tell you to evacuate, there's a bomb threat in the neighborhood, or they tell you to evacuate because of flooding, or there's an act of God, the law says that shuts you down, earthquake, fire, whatever, flood. There's a list of these exceptions in California's wage orders. Those are those postings that you have to have along with all your other big posters hanging in the workplace. And you can see all of those reporting time pay exceptions there. There's actually one kind of secret exception that's not listed in the wage orders. Labor commissioner has guidance out there that says that rain, simply rain, can excuse reporting time pay. Labor commissioner says if rain makes it unsafe or impossible to work, you can send employees home without paying that reporting time pay.

And yeah, it is a kind of an interesting secret one because it's not out there in the wage orders where we all see the exceptions to the reporting time pay. But if you know where to look in their enforcement manual, you can see they've made mention of this. And that enforcement manual is really good guidance for us and for everybody because that's what the deputy labor commissioners are using to evaluate claims are brought before them. So it's good to know what the labor commissioners are using to evaluate the claims. It's also important, I think, from that secret exception as you raised it, that it's not all rain. Right. They were clear that we're really looking at rain that is making it unsafe or impossible to work. And so just because it's raining doesn't mean we have an exception to the reporting time pay. If we feel like stopping work or sending them home, it needs to make it unsafe or impossible to work. So let's talk about then where we are with our workforce, right. We know over the last few years we've had a change in where work is performed. A lot more work can be performed remotely. And so a question we're getting a lot is about remote workers. And first, are the rules even different with remote workers? And then also, you know, what do we do with these reporting time pay issues if the power goes out at their home? So what do you think about those two issues, Ellen?

Well, I don't think it's going to make a difference if I'm at home or I'm at the office. If the power goes out and it's unsafe for me to work or can't work. That should excuse the reporting time pay. But what if the lights are on but the Internet goes down? You know, you get that little message on your cell phone that your Internet is down and we're sorry, it won't be up for six more hours or whatever. The Internet is not considered a public utility, so it is not subject to that reporting time pay exception. So if the Internet goes down, you know, we would still have to pay reporting time pay if we told an employee, well, sorry, you're done for the day, you can't do any work. What if, though, Internet goes down? But you know, downtown Sacramento, where y' all are working, Internet's still running. Could you tell me, well, Ellen, hop in your car and come into the office where the Internet's up and running. You probably could. No reason I can't come downtown. But then we have the question of do you have to pay me for the time to get out of my PJs and bunny slippers I work in and get dressed and drive into work? We really don't know. We're three years into this grand what I'll call work from home experiment that Covid threw us all into, and we just don't have any guidance from the labor commissioner on these things. I don't know. Matt, you have any thoughts on that pay for the drive into work and all that?

Yeah, I think I agree with you that an employer can require an employee to do something that's lawful in the furtherance of their work. That's kind of the bargain here that the employer gets to direct the employee's work. But that control, as I talked about before, is a big issue for me. And I think when we talk about commutes and travel time, when you have 100% remote worker, they don't have a commute. And so if you're requiring them to say, hey, you know, you come in, or if you're making it available to that non exempt employee to come in and allowing or authorizing that kind of work because they don't have a commute, all of that's travel pay. And so, yeah, we don't have guidance from the labor commissioner on these things, but we do know they trend towards employee protections. We do know that the general rule is you pay for all time, actually worked or suffered to work or permitted to work as it's used in the wage order. And so if we're bringing those remote workers in downtown or into an office, because we've got the utility and they don't, we need to consider all those compensation things for that as well. So, you know, I'm in line with you, Ellen, on that and that those are the kinds of things that, you know, I would tell our members all the same too, is, you know, if you're allowing your non exempt employees to work or you're directing them to work, we're just paying them for that time. Now, we have the non exempt hourly workers, but we also have exempt salaried employees, and they are, of course not immune to wage and hour issues during disasters. So, so in general, what should employers know about any exempt employee pay issues?

So, you know, generally we always start with that good old overarching rule that if an exempt employee does any work at all during the week, they get paid for the full week. But, you know, we all know there are some exceptions where we can deduct from the exempt employee's pay, always in full day increments, where the exempt employee chooses to take a day off, or if they're sick and they're out of sick leave. So basically, the way it goes, if the employer prevents me from working, I get paid for the day. Like, Matt, if you tell me, don't come to work tomorrow, Ellen, because we're repainting the office. But if I take a day off for my own personal reasons, I want to go to Disneyland or work in my garden, whatever I want to do, then you can deduct a day's pay. But with these emergency situations, there's some big questions that we don't necessarily have answers to. Like I got a call yesterday, an employer in the Santa Barbara area, horrible flooding, mudslides and Montecito craziness. And they desperately needed their managers at work. But literally the freeways and the roads were shut down due to the flooding. So this exempt employee literally could not get to work. They physically could not get there because everything was closed and they didn't do the kind of work that could be done from home. So a question comes up. Does the employer owe them for pay for the day if they literally, you know, can't get to work even in a boat? It's not like they chose to take a vacation day. But also the employer didn't prevent them from working. There's just not really any clear guidance here under the regs.

Thoughts?

Yeah. And that is tricky for this because you know, what I like to do here is always fall back on what is the rule and then what is the exception. Because we know where the rule is, is where we're starting from here. And the rule is, as you said, for exempt employees, if they performed work in the they get paid for the week. It doesn't matter the amount of hours they work, the amount of days they worked. But then we do have these exceptions littered throughout that talk about times where the employee absence themselves from it or they're taking CFRA FMLA leave. And those are areas where we can take permissible deductions from exempt work. And I think this is tricky because.

The ground rule here is that they're getting paid. So we're the ones as the employer who needs to exercise the exception by deducting from their pay or deducting from their PTO bank as appropriate by policy. And so we just want to be cautious here. We can separate things like workplace safety and safe travel to work from wage and hour issues. So is the person exempting them, you know, personally taking themselves out from work, or are they ready, willing and able to work and they're just being prevented by some act of God? As we talked about in the reporting time pay, the rules are different here for the exempt employees. And so it's really kind of unclear in this particular situation whether you want to pay them or not. Where I always sit with this for the listeners is the best practice would be to pay them for the time. And if you don't want to pay them for the time, it means you're exercising the exception and you want to consult with legal counsel. Because whenever you want to do something different from what the rule requires, you want to make sure you're on solid footing or else you're always opening yourself up to claims with the labor commissioner or the courts moving off wage and hour issues. ALAN Because I think we really hit that thoroughly with regards to natural disasters is leaves of absence. And what's interesting about this particular topic and where we are in these circumstances is that there are some unique leaves of absences issues that we don't tend to talk about a lot except in these circumstances. And the first one I want to start with is what's known as volunteer civil service leave for emergency duties. So what does that leave entail?

Ellen well, so certain employees have a legal right to take job protected time off to perform certain emergency duties. There's time off for volunteer firefighters, for reserve peace officers, emergency rescue personnel like fire, sheriff or police department. These time off requirements are contained in several different laws under the California Labor Code. You can learn about each of them on HR California, our website. But basically, honestly, Matt, they all boil down to the same thing, which is basically, hey, let's let those emergency workers have time off their regular jobs so they can keep us all safe. And I think as long as we keep that in mind, it's kind of a no brainer.

Yeah. And what's interesting about this, then, of course, as we know with those who are familiar with administering leaves of absences, how much time do they get? And these kinds of things, and this one's more of a common sense approach. We have an emergency. They are a reserve peace officer or a volunteer firefighter. They need to go perform that duty until the emergency is over. This one's been kind of longer than you would expect. This hasn't been an isolated storm or weather pattern that we've seen up and down the state. It's been sustained. And so their emergency duty time may be lengthier. It's really until they no longer have to perform the emergency duty. But again, as you said, I really like this. It's, you know, let those emergency workers do the job to help keep us all safe. They're performing a civil service. You know, having some grace with that particular leave of absence I think is important for all of us. What employers might see more often, though, because not many of our employees are volunteer firefighters or emergency rescue personnel is something that's going on with schools. And I know here in the area a couple schools went down for at least a day or so and there's a separate leave under the labor code, as you talked about, called school emergency leave. And this might be a situation where, you know, the power goes out at the school or a daycare center has to close due to flooding or for some other reason, just the child can't go or needs to be picked up from these places on an emergency basis. So, Ellen, what does school emergency leave provide for employees under the law?

So, basically, the school emergency leave law is part of what originally was the school activities leave law. So that one was meant for the school play or a field trip or something like that, where employees can take up to eight hours a month off for these school activities. Well, the legislature added in this school emergency leave to the same law, and it applies if you have 25 or more employees. And it basically says if a parent or some other folks. We'll talk about that in a minute. Need to leave work due to an emergency situation, like the child can't remain at school or childcare due to a natural disaster like a fire or an earthquake or a flood, the parent is entitled to take up to 40 hours each year for this emergency situation. And it doesn't always have to be a parent. It can be a parent, a guardian, a step parent, a foster parent, grandparent, or someone who stands in loco parentis to the child. And in loco parentis, it's just a fancy Latin legalese phrase. It means someone who acts in the place of a parent. Like, if your aunt raised you, she would stand in loco parentis to you. So those folks can take up to 40 hours per year off for school emergency situations. And, you know, normally, of course, for school activity leave, like the field trip, you got to give your employer some notice that they're going to. You're going to want time off for that field trip. But obviously, school emergencies don't leave much time for notice. You get a call from the school, school's flooded, you gotta come pick up your kid, off you go.

Absolutely. And that's really the notice. Right. If that happens, then it's just, you know, hey, Matt, school's flooded. I gotta go. Okay. Thanks for the notice.

Yep.

Okay, then. You know, it goes without saying, Ellen, that any discussion about natural disasters needs to include, of course, workplace safety components. Interestingly enough, we've gotten a new law that went into effect January 1st of this year that addresses emergency conditions that you and I will discuss momentarily. But I think it's a really good place to start with just general workplace safety, or OSHA principles about workplace safety. And those really revolve around the idea that employers have a general duty to ensure the health and safety of the workforce, and we need to ensure that the conditions allow for that. Of course, also, employees have this right to refuse to work in conditions that could create the risk of harm without repercussions. Meaning, you know, if an employee decides that they want to refuse to work because they're afraid of imminent harm, they can not work, and we can't punish them for that.

So if you tell me to go stand like in a puddle of water and do some electrical, dangerous electrical work, I can say, no, I'm not, I'm not going to do that.

I think that's the case because there's that risk of imminent harm, and I can't write you up for it. I can't fire you, demote you, and these kinds of things. Okay, so that's the general OSHA principles, and I think that's a good primer for going into the new law that we had this year, SB 1044, that addresses emergency conditions. So, Ellen, give us a rundown of what SB 1044 entails.

Well, it basically is very similar to what we just talked about, and it says that during an emergency condition, an employer can't punish an employee if they leave work or they refuse to report to work if they have a reasonable belief that that work is unsafe. And reasonable belief is really the key term here. Would a reasonable person believe that the work is unsafe? Would a reasonable person under the same circumstances conclude that there was really a danger of death or serious injury? And that's always going to be fact based. So, you know, honestly, doesn't sound too different from the general OSHA principle that you just talked about.

No, and I think that's a really interesting part of it, is that we have this new law and it kind of incorporates a lot of these general principles we talked about, but there are some different components to this. Right, Ellen?

Yeah. So under this new law, there's actually a definition of an emergency condition, and it defines it as a disaster or extreme peril that causes peril to the safety of people or property at the workplace caused by natural forces or, or, and this is interesting, by a criminal act, like maybe an active shooter situation. It also includes a situation where there's an order to evacuate a workplace or the worker's home or a school of the worker's child, again due to a natural disaster or due to a criminal act. So disaster or extreme peril to the safety of people or property is really going to be the key here. So if I refuse to come to work tomorrow because I have a reasonable belief that work is unsafe, let's say I just saw on the news that the whole block that the Cal Chamber Building is on is under Six feet of water.

I have to give some advance notice to my employer when it's feasible before I fail to report to work. So I should call you ahead of time and say, hey, Matt, I'm not coming. I have a reasonable belief that it would be dangerous to come to work.

Foreseeability, feasibility for advance notice, it's always tricky in emergencies. Might not always be feasible to notify you in advance. I get down the road, I get off the freeway, I'm heading to the chamber, and again I see that it's under six feet of water. There's really not a lot of advance notice there. So I'm supposed to notify you as soon as I can that I've determined it's too dangerous to show up at work. So, you know, in these crazy storms, if you're on a construction site and all of a sudden a flood, a wall of water is heading towards the construction site. And I tell my folks, you know, we're going to get out of here. Now, now, now, I don't have to pick up my cell phone first and call you and say, hey, Matt, is it okay if we leave before we drown? The law allows employees to use a little judgment there. That advance notice might be excused. One other important thing in this new law, and we're getting. These are really where the calls are coming into the help line, is the law says employers can't enforce rules against the use of personal cell phones if the device is used during an emergency condition to seek assistance or to assess safety or to communicate to verify safety. And really, does that mean that you can no longer have a rule that I can't keep my cell phone in my back pocket all the time? And that's not really what this law says. What it means is you can still have a general rule that I don't get to carry my cell phone around with me all day during work. But if one of these emergency situation arises, you're gonna have to let me access my cell phone for those safety reasons listed in the law. Seeking assistance, assessing safety, or communicating to verify safety. And that seems pretty common sense.

Yeah, absolutely, Ellen. And I think that's why it's a really important discussion to have about this new law, because that's really the key. A lot of us have reasonable personal cell phone safety policies and you can keep them. Just. We have to remember now we've got a carve out and it's only based on those emergency conditions you described. So unless there's an emergency condition as you described, then continue to enforce your cell phone policy as you would, but once we get to that condition, then let them use it. And Ellen, I think we want to leave with one final quick note about emergencies. And you know, we've talked a lot about employees being able to work or not being able to get to work in these situations. Is there any kind of unemployment benefits or things that change during emergency conditions?

So just two things of note. During declared emergency declared by the governor, the one week waiting period for UI benefits is waived. So if I'm not able to work for a certain period of time due to this natural disaster, I can collect unemployment insurance right away without that normal one week waiting period. The other thing that affects employers is when there is a disaster. There are circumstances where employers have a longer time to file certain things with edd, payroll taxes and other reports when there's actually a disaster. If you jump onto EDD's main website and scroll down to the bottom of the page, there's a link to disaster assistance on the bottom left of that page and that talks about all of these exceptions and where you can get more information, list of all of the natural or the disasters that have been declared, things like that. So it's a good resource.

Well, Ellen, thank you for taking the time to be with me today. This was really a great practical discussion about disasters, this one and others into the future that I think we can all take lessons from and use as reminders on kind of how to handle these various employment and workplace issues that arise during the disaster.

Well, thanks Matt for having me. And you know it's raining here, so can I be done with work today?

Not unless you're unsafe, Alan, and you look nice and safe there in your home office. So thank you again for taking the time with me today and thank you listeners for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.

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