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Wage & Hour
Law: What to Do in a Power Outage?
(last updated July 2001)
The
DLSE has had a large number of inquiries regarding employers'
wage and hour obligations when faced with electrical power
outages. What are an employer's pay obligations when a rolling
black out means employees must be sent home from work? The
DLSE has offered the following guidelines:
Reporting
Time Pay: The Wage Orders provide that each workday
an employee is required to report for work and does report,
but is not put to work or is furnished less than half said
employee's usual or scheduled day's work, the employee
shall be paid for half the usual or scheduled day's work,
but in no event for less than two (2) hours nor more than
four (4) hours, at the employee's regular rate of pay,
which shall not be less than the minimum wage. If an employee
is required to report for work a second time in any one
workday and is furnished less than two hours of work on
the second reporting, the employee shall be paid for two
hours at the employee's regular rate of pay, which shall
not be less than the minimum wage.
However,
the Wage Orders specifically state that reporting time pay
provisions are not applicable when public utilities fail
to supply electricity, water, or gas, or there is a failure
in the public utilities, or sewer system or if the interruption
of work is caused by an Act of God or other cause not within
the employer's control. Therefore, if an employer suffers
through a general, rolling blackout, that causes the employer
to shut down production and send its workers home, the employer
will not be liable for reporting time pay. However, if the
employer voluntarily agreed to a power cutoff, then this
exception would not apply.
The
Wage Orders also state that the reporting time pay requirements
shall not apply to an employee on paid standby status who
is called to perform assigned work at a time other than the
employee's scheduled reporting time.
Employer
Control/"Hours Worked:" If an employer facing
a power outage (regardless of cause) requires its employees
to remain on the premises and wait for the power to return,
that time would be compensable "hours worked" within
the meaning of the Wage Orders,and the employees must be
paid. The same would be true if the employer allowed the
workers to leave the premises, but so significantly restricted
their movement as to constitute "controlled stand-by
time" (e.g., employee must wear beeper, and return
within ten minutes of notification that electricity has
been restored).
Split
Shift Premium: The Wage Orders define a "split
shift" as "a work schedule, which is interrupted
by non-paid non-working periods established by the employer,
other than bona fide rest or meal periods." The Wage
Orders require that "when an employee works a split
shift, one hour's pay at the minimum wage shall be paid
in addition to the minimum wage for that workday, except
when the employee resides at the place of employment." So
if an employer facing a power outage sends its workers
away from the premises, with instructions to return say
2 or 3 hours later, there may be split shift premium liability.
Impact
on Alternative Workweek Schedule: If an employer has
employees working an Alternative Workweek Schedule, but
has the employees work less on a given day than the hours
normally set for that day, then there may be overtime liability.
In such cases, the employer must pay overtime pay for all
hours worked in excess of 8 on that day. So, if an employer
has an Alternative Workweek Schedule by which the employees
work 10 hours a day, but sends the employees home one hour
early because of a power outage, the employer must pay
time-and-a-half for the ninth hour. Also, if the employees
are asked to come back and make up their lost hours on
a day that is not a regularly scheduled workday, the first
8 hours worked on the non-regularly scheduled workday must
be paid at time and a half, and all hours worked in excess
of 8 on the non-regularly scheduled day must be paid at
twice the regular rate.
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