On October 17, 2017, the Puerto Rico Secretary of Labor and Human Resources (Secretary) issued Opinion No. 2017-001 (Opinion) regarding the compensation of exempt and non-exempt private sector employees for workdays interrupted by Hurricanes Irma and María and their aftermath.
In the Opinion, the Secretary explains that pursuant to the federal Fair Labor Standards Act (FLSA), non-exempt employees are entitled to compensation for hours worked only. Employers are not required to pay the hours that non-exempt employees would have worked had the natural disaster not occurred. Employers should keep in mind, however, that hours worked also include: (1) hours the employee is allowed to perform work that benefits the employer even when the employer has not required the employee to do so, (2) hours worked remotely or outside the regular place of employment, and (3) the waiting time of an employee. For example, compensable time under the waiting time provision typically would include the hours in which employees have reported to work and cannot perform their duties because there is no water, electricity, internet or some other factor that prevents them from doing their work, but the employer requires them or allows them to remain in their work area pending the resumption of these services.
Although the Secretary recognizes that there is no legal obligation to do so, considering the pressing circumstances surrounding the destruction caused by Hurricanes Irma and María, the Secretary encourages employers to pay the wages of their non-exempt employees even if they do not work, and to not deduct these payments from otherwise paid leave. In the alternative, employers may credit the hours non-exempt employees do not work against accrued but unused vacation leave. Also, where applicable, at the employee's voluntary request, employers may credit these hours against any other paid leave to which employees may be entitled pursuant to internal policies.
The Secretary explains in the Opinion that the FLSA requires employers to pay exempt employees in full for each week of work in which the employee performs any work and regardless of the hours actually worked (with limited exceptions). If an employee does not perform any task or work any hours during a particular week, the employer is not required to compensate the employee for that particular week. Consequently, employers that ceased operations for less than a week due to Hurricanes Irma or María must pay the entire workweek, if the employee performed any work-related task during that week. However, the Secretary states in the Opinion, if the employer’s workplace is open and the employer calls an exempt employee back to work, but the employee is absent for one or more full days due to personal reasons such as bad weather, impassable roads, lack of fuel access, or transportation problems, the employer may deduct those full days from the employee’s weekly salary.
The Opinion also encourages employers to explore possibilities for exempt employees to receive full pay during this period regardless of whether they performed work during a particular week by charging those days to any paid leave available pursuant to company policies.
Finally, the Secretary recognizes that private employers can provide greater benefits to those established by law via employment contracts or collective bargaining agreements. Under any such scenario, compensation for either exempt or non-exempt employees should be made pursuant to the terms of these contracts or agreements, and in the employee's favor.