How to Handle Employess During Wild Fire Evacuations

Employment Issues Raised By California Fires

With the disruption caused by the recent fires, employers are left with the difficult task of managing employees. Wild fires raise at least two significant questions for employers in Southern California: (1) With mass evacuations and business closings, what are an employer’s obligations to compensate employees for days of work missed?; and (2) With poor air quality caused by soot and smoke, what are employer’s obligations to provide a work environment that is safe and healthy?

Compensation for Absent Employees

Employers face a difficult decision in determining how employees should be paid for work missed during the firestorms. Many employers have already decided or may decide to simply compensate their employees at their regular rate of pay as if business had not been interrupted. Yet, where circumstances may call for longer absences, the decision to pay employees for work that is not performed becomes increasingly difficult to make. The obligations of employers to compensate employees for time off due to emergencies depends on the circumstances of the situation and the designation of the employee as either exempt (salaried) or non-exempt (hourly).

Non-Exempt Employees

Generally, employers are required to pay non-exempt (hourly) employees for the hours they work. There is no specific obligation to compensate non-exempt employees for days they do not report to work, whatever the reason may be, unless there is an agreement to the contrary. So, absent an agreement otherwise, if a non-exempt employee did not work for any reason the employer is not legally obligated to compensate them for work missed on those days. It does not matter whether they did not work because they personally were evacuated, or choose not work in order to keep roads clear, or were unable to work because the business was closed. If consistent with an employer’s policy, such employees may be allowed to use vacation time, or other accrued paid time off for such absences.

There are however, some exceptions that apply to the above general rule. As always, non-exempt employees may be required to be partially compensated for “reporting time pay,” “call back pay,” or “controlled time.”

Under the “reporting time pay” rule, if a non-exempt employee must report for work but is not put to work, or is given less than a half day’s work, the employer may be required to pay “show-up” or “reporting time” pay to the employee. Reporting time pay is calculated at half the usual or scheduled day’s work (between 2 – 4 hours) at the employee’s regular rate of pay.

Reporting time pay however is not applicable where work was suspended: (1) by threats to employees or to property; (2) on the recommendation of civil authorities; (3) by a failure of the sewer system or of public utilities to supply electricity, water, or gas; or (4) by an act of God or other cause outside of the employer’s control. So if employees were sent home because of evacuation orders or because of a loss of public utilities, employers may not be required to pay for reporting time. If however, the employer elects to send employees home to be with their families, then the employer may be required to pay reporting time wages.

Likewise, if an employee is called back to work a second time in a scheduled workday and is given less than two hours of work, he/she must be paid for at least two hours of “call-back pay” at the regularly hourly rate. This is of course provided that the above four exceptions do not apply.

Non-exempt employees must also be compensated for time where they are “on-call” or where they are otherwise still in the control of their employer. This may include where employees are required to wait on the premises for power to return, where employees are required to be on-call if conditions improve, or where employees are required to work from home. Non-exempt employees are compensated at their regular rate of pay for time controlled by their employer.

Compensation for non-exempt employees for hours not worked does not contribute to overtime calculations. Employers should be careful to distinguish pay for hours worked from pay for hours not actually worked to avoid any miscalculations.

Finally, if some non-exempt actually did work during periods where other employees were compensated without working, the employer may contemplate alleviating the unfairness by giving the employees who did work compensatory time off or some other bonus or gift. As a practical matter, an employer should put an expiration date for taking the compensatory time off to avoid the administrative burden of keeping track of the time on the books over an extended period of time. Some employers also implement a policy that compensatory time off cannot be taken as pay.

Exempt Employees (Executive, Administrative, or Professional Employees)

An exempt employee is required to receive their regular predetermined salary for any week in which they work regardless of the actual hours or days worked. Any deductions taken from a salaried employee’s pay for actions of the employer, such as closing the business, could jeopardize the employee’s exempt status. The following rules are important to follow when paying salaried employees for pay periods in which they were absent:

If the employee was ready, willing and able to work, deductions may not be made for time when work was not available or when the business was closed. However, if the business was closed for an entire work week, and an employee performs no work during the entire week, then the employer need not pay salaried employees for that week.

An employer may deduct pay from a salaried employee that is absent from work for one or more full days for personal reasons and therefore performs no work during that workday. So, if the business is open but the employee is unable to make it into work for the entire day due to personal reasons, the employer may deduct for each full day the employee is absent.

Deductions for less than a full day’s absence are not permitted. If the employer docks pay for a partial-day absence, the affected employee does not meet the “salary basis” test and is no longer exempt from overtime pay requirements.

Exempt employees cannot be required to use their accrued vacation time to cover absences unless employers give reasonable advance notice of such a requirement. Employers therefore should not require salaried employees to apply their vacation time to emergency absences. However, should employees elect to use their accrued time for such an absence they may do so.

Air Quality

The California Labor Code requires every employer to furnish employment and a place of employment that is safe and healthful for the employees therein. The labor code also specifically states that “no employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.” Every employer also has a duty to furnish and use safety devices and safeguards, and must adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render the employment and place of employment safe and healthful. Employers are not required to provide a work place that is absolutely safe, but as safe as they can make it under the circumstances, and having used usual or requisite precautions.

Depending on the current air quality index and the type of work to be performed by employees, it may be reasonable for employers to take precautions in protecting employees from harmful smoke. San Diego Air Pollution Control District ’s (SDAPCD) website ( provides a daily air quality assessment of different areas within San Diego. The web site also indicates what actions should be taken relative to the air quality. For example, when air quality is unhealthy, employers should avoid forcing employees to engage in activities outdoors that require prolonged physical exertion. If a job cannot be performed within the restrictions of the SDAPCD, employers should use safety devices or take other reasonable precautions to make the workplace safe for employees.

Thank you for your interest in this article. You should not rely upon it as legal advice. The information contained herein does not create an attorney-client relationship. This article is intended for entertainment and general information purposes only. Laws vary state. Anyone seeking legal advice for a specific situation should consult a qualified lawyer or similar qualified professional in the appropriate state.