Question:

With the heavy rain and thunderstorms we’ve recently had in this area, I am concerned about the possibility of power outages and how they affect me as an employer. If I send employees home early, do I have to pay them for the full day? Can I send employees home and call them back when the power returns?

Answer:

In the event of a power outage, employers have three options: require the employees to remain at work to wait for the power to return; send the employees home early and tell them to return the next workday; or send the employees home early and then call them to return to work if the power returns. In all of these scenarios, you must pay exempt employees a full day’s pay if they worked any part of the day. But how you pay non-exempt employees depends on which of these options you choose.

Some employers require their employees to stay at work and wait for the power to return. Many of these employees may not be able to perform any of their work duties because their jobs are fully dependent upon electricity. Nevertheless, even though these employees are not performing any work, they are under the employer’s control, and employers must pay non-exempt employees for the time they spend waiting for the power to return. As the U.S. Supreme Court noted in a decision, “an employer, if he chooses, may hire a man to do nothing or to do nothing but wait for something to happen.” An option available to employers is that if the power outage occurs some time close to the beginning of a meal period, employees can take their unpaid meal periods and return to work. Upon returning from their meal periods, if the power is still out, the employer can decide whether to send the employees home or have them stay a while longer.

Employers may find that after waiting for an hour or two for the power to return, it makes more sense to send the employees home. Normally, if a non-exempt employee reports to work and is either not put to work or works less than half of the hours that he was scheduled to work, the employee is entitled to reporting time pay. That means that the employer must pay the employee for at least half of the hours he was scheduled to work or usually works. For example, if on a normal workday, an employee is scheduled to work from 9 am to 5 pm but due to a lack of work is sent home at 12:30 pm, the employer must pay her for four hours of work although she only worked for three-and-a-half hours. But reporting time pay does not apply in the event of a power outage. If a non-exempt employee is sent home because the electricity has gone out, the employer need only pay the non-exempt employee for the time actually worked that day. The reporting time pay requirements do not apply when public utilities fail to supply electricity, water, or gas, when there is a failure in the public utilities or sewer system, or in other circumstances beyond the employer’s control. Therefore, if a non-exempt employee who normally works from 9 am to 5 pm is sent home at 12:30 pm due to a power outage, the employer needs to pay the employee for the three-and-a-half hours actually worked.

Of course, once an employer has decided to send the employees home and everyone has left, it is possible that the power will return within the hour. In that case, employers can call employees back to work. Normally, if an employer requires a non-exempt employee to report back to work a second time in a workday and the employee works fewer than two hours on the second reporting, the employer would have to pay the employee reporting time pay of at least two hours pay for his return to work. But as noted, reporting time pay does not apply to work situations involving power outages. The non-exempt employee would be owed wages for the hours actually worked upon his return to the workplace.

Given the various options available in the case of a power outage, an employer should consider what choices make the most sense for the particular situation, and ensure that employees are paid the correct wages.

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