Worker Rights When the Lights Go Out 09-19-2003
- By Ann F. Kiernan, Attorney at Law

The Great Blackout of 2003, the largest power failure in North American history, may be just the first of many, according to experts who say that our country's infrastructure is antiquated and failing. Utilities, state and local officials and your company's physical plant employees are already working on preventing and responding to future power disruptions, but do you know how to handle employment law issues raised by a blackout?

Here are a few FAQs to ponder:

1. If the lights go out in the middle of the day and stay off for another two days, what are the rights to pay for exempt and non-exempt employees?

Under federal and state laws, exempt employees' pay cannot normally be docked unless those workers miss an entire week. Under federal law, employers can send home non-exempt workers without pay. But if those employees are required to stay at work until power is restored, they must be paid, even if no work is performed. Hourly workers who are sent home and told to remain on call, but who otherwise are free to do what they like, usually do not have to be paid until they are called in to work.

Although some states, such as California, provide for minimum "reporting time" pay for non-exempts, a little-known exemption says it does not have to be paid if the interruption of work is caused by a public utility failure to supply electricity, water or gas.

Go here for more information on wages, hours and overtime information.

2. Do those 2 days "count" when an employee is on family leave?

Yes, under federal law, anyway. The Department of Labor's FMLA regulations say that holidays when a business is closed count as part of a week of FMLA leave. However, if for some reason the employer's business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., closing for a week for the Christmas/New Year holiday or shutting the plant for retooling or repairs), the days the employer's activities have ceased do not count against the employee's FMLA leave entitlement. So, it looks like a blackout-related closing of less than a week would be considered part of an FMLA leave. State leave laws may differ, so check with a local lawyer for more specific information about your state.

3. Can employees be forced to take the closed days as vacation?

Yes. As a general rule, employers are free to have whatever vacation policy they want-or not to have one at all! However, be aware of potential morale problems. A better solution might be to offer employees the option of taking the days as vacation so that they will not suffer a loss in pay.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.