Here We Go Again!
With a major heat wave and statewide red flag warnings, California employers again face rolling blackouts or protective power interruptions that could shut down businesses throughout the state. Employers often wonder how to pay employees who cannot work when the power goes off, especially employees who have been sent home.
Salaried employees must be paid for any day they work at least part of the day and may only lose a day’s pay when they miss an entire 24-hour period for their own reasons. Like other absences beyond their control (such as jury duty), salaried exempt employees receive their pay notwithstanding power interruption.
Hourly employees are more complicated. Employers generally do not need to pay hourly employees for time they are not working. But when an hourly employee is sent home early, or called back again after working the same day, employers usually must pay “reporting time” minimums. This often occurs when (1) an employee is sent home involuntarily prior to the end of a regularly scheduled shift (and has not worked at least half the scheduled shift length) or (2) an employee is called back after completing work earlier that day but does not receive at least an additional two hours of work. These requirements are in Section 5 of most employer wage orders (see https://www.dir.ca.gov/iwc/wageorderindustries.htm).
The good news: Employers are not required to apply the reporting time requirements when “utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer.” The requirements also exclude situations where “operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities” – which should also include mandatory fire evacuations and similar public emergencies.
Under these rules, employers may send employees home when they cannot continue operations due to power outages. They may also call employees back when power returns.
The same rules should apply to employees who are teleworking. It is possible that some employees, but not others, will be affected by local outages while working remotely during the COVID-19 pandemic.
Employers should also consider any other issues caused by outages, such as whether employees who could technically keep working should continue. For example: state heat regulations and employers' general duty to maintain a safe workplace may require some employees (such as warehouse or packing shed workers) to stop working, or to receive regular rest and recovery periods, when a heat wave knocks out power and causes high temperatures in otherwise cooled workplaces. This and other issues are discussed by Cal-OSHA at https://www.dir.ca.gov/dosh/Protecting-Workers-When-there-are-Power-Outages.html.
Power outages may also impact employers' ability to deal with pandemic precautions, such as operating cleaning equipment and maintaining air circulation/filtration. These and other issues make handling our "new normal" even more difficult in the Golden State.