Take care of your employees during wild fires in Southern California

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In the midst of the 3rd largest wildfire in California’s history, we thought you would appreciate a primer on some of your obligations in regards to pay and leave issues during times of natural disaster.

Reporting time pay obligations

What is reporting time pay?

As required under the applicable Wage Orders, reporting time pay is partial compensation for employees who report to work expecting to work a certain number of hours but do not receive that amount of working hours due to inadequate scheduling or lack of proper notice by the employer. In those situations, the employer has the following obligations:

  • Each workday an employee is required to report to work, but is not put to work or is provided with less than half of the employee’s usual or scheduled day's work, the employee must be paid for half the usual or scheduled day's work, but in no event for less than two hours nor more than four hours, at the employee’s regular rate of pay.
  • If an employee is required to report to work a second time in any one workday and is provided less than two hours of work on the second reporting, the employee must be paid for two hours at the employee’s regular rate of pay.

The California Labor Commissioner provides the following example:

If an employee is scheduled to report to work for an eight-hour shift and only works for one hour, the employer is nonetheless obligated to pay the employee four hours of pay at his or her regular rate of pay (one for the hour worked, and three as reporting time pay). Only the one-hour actually worked, however, counts as actual hours worked.

As such, any extra hours paid per reporting time pay obligations that were not actually worked are not counted towards hours worked for purposes of determining overtime. Employers are not required to pay reporting time pay if the employee voluntarily leaves work early. For example, if the employee leaves work early due to illness or to attend to personal issues outside of work, then the employer is not obligated to pay reporting time pay (however, this may trigger paid sick leave or other legal obligations for the employer). Moreover, court cases have addressed the situation in which an employee is required to report to work for a meeting that is less than his/her regular shift. If this occurs on a day in which the employee is not otherwise scheduled to work and the employee is not informed of how long he/she will be working that day, the employee is entitled to at least two hours of pay, and up to four hours if the employee normally works 8 hours or more per day. However, if the employer schedules the employee to come into work for two hours or less, and the employee works at least one half of that scheduled shift, the employer is only required to pay for the actual time worked and no additional reporting time pay is owed.

Exceptions to reporting time pay obligations:

The Wage Orders provide that employers do not have to pay reporting time pay under the following circumstances:

  1. When the employer's operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue.
  2. When public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system.
  3. When the interruption of work is caused by an Act of God or other cause not within the employer's control, for example, an earthquake.

How do the reporting time pay rules apply to disruptions in hours worked due to disasters such as fires?

It is very possible that one of the above exceptions would apply where an employee is not put to work for his/her full shift because a disruption in the employer’s operations due to a disaster. For example, if a nearby fire is posing a threat to the employer’s premises/property, if there is an evacuation order imposed by local authorities covering the employer’s premises, or if the fire disrupts the provision of basic utilities to the workplace and an employee’s shift is cut short as a result, those situations would be covered as exceptions to the reporting time pay rules and the employer would not be required to provide reporting time pay. However, each situation is unique to its own facts and before coming to any such determination, employers may want to consult with counsel.

What about pay for exempt employees?

Employees paid on a salary basis who fall within a managerial/white-collar exemption and who miss work due to a discontinuance of the employer’s operations are subject to different rules. If an exempt employee misses only a partial week of work under those circumstances the employee must be paid his/her regular pay for the entire work week, but the employee’s accrued paid time off/paid vacation can be applied to the time off in accordance with the employer’s policies. Any full work weeks that the employee does not work do not have to be paid.

Leave based on school / child care closures

Employers with 25 or more employees may be obligated to provide an employee with up to 8 hours of time off within a calendar month (not to exceed 40 hours each year) as needed where the employee’s child’s school or child care provider is unexpectedly closed or unavailable due to (among other things) natural disaster, including, but not limited to, fire, earthquake, or flood. Any such time off would be unpaid, unless the employee is allowed to use paid time off or paid vacation time.

Leave for volunteer civil service personnel

Employees who perform emergency volunteer duties as volunteer firefighters, peace officers, or emergency rescue personnel are entitled to unpaid time off as needed when their duties are activated or for required training. Employees who are volunteer firefighters are entitled to temporary leaves, not to exceed a total of fourteen (14) days per calendar year, for the purpose of engaging in fire or law enforcement training.

Workplace safety issues in wildfire regions

Smoke from wildfires contains chemicals, gases and fine particles that can pose a health hazard to employees exposed to them. Hazards continue even after fires have been extinguished and cleanup work begins. Proper protective equipment and training is required for worker safety in wildfire regions.

Cal/OSHA directs employers to consider taking the following measures as part of their Injury and Illness Prevention Program under Title 8 section 3203 of the California Code of Regulations and as required under section 5141 (Control of Harmful Exposure to Employees):

  1. Engineering controls whenever feasible (for example, using a filtered ventilation system in indoor work areas);
  2. Administrative controls if practicable (for example, limiting the time that employees work outdoors);
  3. Providing employees with respiratory protective equipment, such as disposable filtering facepieces (dust masks).
    1. To filter out fine particles, respirators must be labeled N-95, N-99, N-100, R-95, P-95, P-99, or P-100, and must be labeled approved by the US National Institute for Occupational Safety and Health (NIOSH).
    2. Approved respiratory protective equipment is necessary for employees working in outdoor locations designated by local air quality management districts as “Unhealthy,” “Very Unhealthy,” or “Hazardous.”

Cal/OSHA also has published guidance on worker safety during fire cleanup. If your employees are performing cleanup and other work in areas damaged or destroyed by fire, you are required to identify and evaluate the associated hazards, correct any unsafe or unhealthful conditions and provide training and instruction to employees (California Code of Regulations, Title 8, sections 1509, 1511, 1518 and 3202).