Power outages: Don’t leave remote employees in the dark

By: Judy Kneiszel

Publication: Employment Law & Regulatory Alert

Date Posted: 08/10/2022

Remember the old joke, "Where was Bob (or some other name) when the lights went out?" Answer:"In the dark!"

A question that's not a joke is: Where will your remote employees be when their lights go out due to a storm or some other calamity? In the dark, yes, but will they be on oroff the clock?

Maybe your employees are all located where power outages are rare, or all your workers are on site and you have back-up generators, so this isn't a big issue.

For employers with remote workers scattered across the country, however, power outages may be a frequent problem, especially for those with employees in places like California where rolling blackouts are common in summer.

The federal Fair Labor Standards Act (FLSA) states that nonexempt (hourly) employees must be paid for every hour worked and receive overtime when working more than 40 hours in a workweek. But what about when the power goes out, and remote workers can't work?

There are two situations remote employees could be in during a power outage that determine if theymust be paid.

The first situation is if employees are "engaged to wait." If employees are expected to jump right back onto their computers the minute the power comes back on, then you must pay them. They are waiting to be called back and not relieved of duty.

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In this first scenario, the employees' time isn't their own. Think of it like a hotel night clerk who is expected to stay at the desk regardless of whether there is a customer checking in. The hotel employee may be surfing the web or reading a book, butcan't go home.

The second situation involves employees "waiting to be engaged" during the power outage. In this situation, the employee's manager might say, "Since your power is off, you are free to do what you want; check back in three hours." In this situation, even if the power comes back on in less than three hours, the employer can't discipline the employees for not being online. The employees are free to do what they want during the three hours and don't need to be paidfor this time.

To avoid confusion, it is best to establish procedures for remote employees to follow in the event of a power outage. You may want to instruct them that in the event of a power outage they should use their smart phones to:

  1. Alert their local power company about the outage and/or check the power company's website or social media platforms to determine if the outage is widespread, as well as the estimated timeline for restoring power.
  2. Notify their manager or supervisor so the decision can be made as to whether affected employees should be engaged to wait or wait to be engaged. Much will depend on the expected duration of the outage.

Key to remember: By having procedures in place for remote employees to follow when the lights go out, you won't be leaving them in the dark.

About the author
Judy Kneiszel - Human Resources Editor

Judy is an Associate Editor on the Human Resources Publishing Team and she specializes in issues such as recruiting and hiring, onboarding and training, employee communication and discipline, managing problems, team building, inclusion, employee retention, and labor relations

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