California labor laws on power withdraws
The state of California has established several labor laws that apply to power outages at the workplace, with a focus primarily on protecting employees in terms of their wages and hours. Under the state law, employers are required to pay employees for nonproductive time, even if their work is disrupted by a power outage or other conditions beyond their control. At the same time, employers are not required to pay employees who are not on the clock and are not working at the time of the power failure.
All California employees must be paid for a three-hour minimum reporting time, even if they do not end up working for three hours. So, for example, if employees report to their workplace but the electrical outage does not end up being resolved for several hours, the employer would still be required to pay each employee a minimum of three hours of wages.
Time spent by an employee while waiting for the restoration of electricity is considered "on duty," which means that the time must be paid even if the employee is not working productively . On Mondays, sick pay can be used to cover such instances.
When making determinations of whether an employee should be paid through a power outage, employers should keep in mind that not all types of power failure are covered by the above labor laws. For example, if the power in a certain building is out but another building across the street has not had any issues, then the employer could require employees to work in the unaffected building while paying wages for all hours worked.
Also, some businesses may stay open despite a power outage for the sole purpose of providing employees with food and other sustenance while they wait for the lights to be turned back on. If employers choose to keep employees on the clock even if they are unable to perform their work due to the outage, then the employer must pay their employees for such time, in accordance with the labor law.
What an employer must do in a power outage
An employer’s duty to provide employees with safe and healthful working conditions is not suspended during a power outage. Therefore, when a power outage occurs, there are several immediate obligations an employer must be prepared to attend to. For example, in the event of a power outage, an employer must determine the necessary steps to ensure employees have access to drinking water and bathrooms, and whether or not it is necessary to issue first aid supplies or have extra flashlights available. Since power outages often cause significant economic damage, many employers may be quick to re-open quickly after a power outage. However, an employer must also ensure that all exits are marked and illuminated, and continue to provide employees with a safe working environment before business is resumed.
Pursuant to the California Wage Order 5, where an employee is required to leave work early because of a power outage, the employer has no obligation to provide compensation for work missed. The Judge Panel of the California Division of Labor Standards Enforcement also issued an opinion letter stating that "if employees do not come to work or are sent home at the beginning of a shift due to power failure, it is the determination of the employer whether to pay the employees for time missed or to treat it like an involuntary layoff." An employer will have to weigh the costs of issuing payment for all hours missed as opposed to having a disgruntled workforce, and decide what action to take. In the emergency of a power outage, employers should take time to consider their policies, as well as potential situations that may arise, and be prepared to act accordingly.
What an employee can do in a power failure
If the power goes out and you can’t work because of the outage, the employer still has to pay you for your hours, even if you are unable to perform any actual work. See below for example analysis:
Example 1: Employee Gabriela works at an airport as a ticketing agent. Because of a severe windstorm, the airline’s computer system went down and the airline was unable to process credit card transactions. Although there were customers lined up and wait times for customers were exceptionally high, Gabriela was unable to handle any transactions. Her employer sent employees home when the power was restored, Gabriela had worked only 3 hours that day.
Although Gabriela could not perform any work, Gabriela is entitled to full payment of her shift, because the power outage affected her ability to perform her job.
Example 2: Jennifer is a front desk receptionist at a large company. Her employer implements a time clock so that all employees must clock in and out. One morning, the power goes out and employees are unable to clock in and out from the time clock. Her employer ordered all staff to report to work anyway, and stated that they would manually input their time later.
Jennifer was unable to clock in, but her employer still paid her for her hours that day, although employees do not need to be paid for time they are unable to work.
Pay in case of power-outage-induced employment interruptions
The answer to whether an employee must be paid during a work interruption caused by a power outage is simple: it depends.
If an employee is sent home due to a power outage, it is very likely that the employee will not need to be paid for the time that he or she did not work. An employer may, but does not have to, pay employees who have been sent home due to a power outage. Cal. Code Regs. tit. 8, § 11160(3)(B) explains that if an employee is not sent home, "employees report for duty on all scheduled work days shall be paid at least two (2) hours …" of pay.
If an employer sends an employee home before the end of the first two hours of work, they will not be required to pay the employee for the rest of the day and is permitted to rest their employees for the first day of the week. Cal. Lab. Code §§ 551-53. However, an employer is not required to rest its employees more than once a week or for greater than the full day’s work . These requirements may be waived by mutual agreement between the employer and the affected employee. Id.
If the employee is asked to stay on site during the power outage, compensation-related laws require employers to pay non-exempt employees for all hours worked (including overtime). In California, an employee’s wages are defined as "all amounts for labor performed by employees of every kind." Cal. Lab. Code § 200.
Further, California requires employers to pay non-exempt employees within the timeframe required under California labor laws. Employers must pay:
Unless a different payment period is required under a collective bargaining agreement, an employer who willfully fails to timely pay wages owed when due will be penalized by payment to the employee of a sum equivalent to the amount unlawfully withheld, plus interest thereon at the rate of interest described in subdivision (b) of Section 3287. Cal. Lab. Code §203.
Employee and employer safety during power outages
To ensure safety for both employees and other occupants of the workplace, plan in advance how people should exit the building, and include emergency responders in that plan. Know the potential hazards that could arise from holding a meeting in a high-rise building. If there is a fire, the elevators need to be unplugged. Or what if the power goes out at night? An employer should develop appropriate emergency plans and procedures in the event of fire, explosion, flooding, power outage and other potentially life threatening situations. Update those plans regularly. Involve employees in identifying potential hazards, and provide training, including how to obtain first-aid assistance immediately. Keep emergency lights charged and the generator maintained, regularly checking to make sure they are in good working order. Also be mindful of portable light sources and ensure they are available, where needed. Inspect cords frequently. In addition to planning, make sure emergency numbers are posted. If you are allowed to, keep a landline phone at the workplace. Make sure that people know how to contact the building manager. Give employees a water bottle and flashlight in case of an emergency. Keep a first aid kit in the building and assign someone to check it periodically to make sure it’s stocked and the supplies are fresh. Regularly test the fire alarm and sprinkler systems. Conduct fire drills. Teach employees how to use portable fire extinguishers, and maintain the fire alarm system.
Legal options for employees facing workplace power failures
In many cases, an employee may feel they have no option but to accept the stifling conditions an unannounced power outage may impose on the workday. This is simply not true. Employees retain the right to be heard when workplace laws and regulations are purportedly transgressed. Moreover, employees also have the right to seek additional compensation in light of any alleged laws or orders deemed violated pursuant to California workplace law. Simply because a power outage may affect the functioning of a single business does not prevent that same business from escaping the laws set forth for protection of its employees . Examples of acceptable recourse for employees include: • Reporting a power outage to the nearest OSHA office • Filing a complaint with your state’s OSHA, CalOSHA, or Federal OSHA office • Refusing to work as a result of illegal pay-docking, wrongful questioning, or other unlawful repercussions • Filing a complaint with your local labor board for unpaid wages • Consulting an attorney to learn about options to file a lawsuit to recover lost wages By contacting OSHA, California Labor Board, or an attorney, you may be able to catalyze change, protect fellow employees, and ensure that any lost wages are recovered.