Winter’s Wrath Causes Employment Worries

Kathy Speaker MacNett, Esq.

December 16, 2019

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Winter storms present particular challenges to human resources administration.  Employees in Pennsylvania can consult www.511PA.com to obtain up to date information about travel conditions.  Employers should be aware of the laws affected by weather emergencies in our Commonwealth. 


ROAD CLOSURES BY THE PENNSYLVANIA GOVERNOR EXCUSE MOST EMPLOYEE ABSENCES


A 1998 Pennsylvania law (Act 4), which triggers only if the Governor declares an emergency, excuses most employees’ absences from work.  The Act provides generally that an employer may not discipline or terminate, but does not have to pay under state law, employees who fail to report to work in most industries during declared emergencies resulting in the closure of roads. Certain emergency services employees, however, are not included within the protections of Act 4. (Section 1485).

The text of Act 4 can be accessed at:  Act 4


DECLARATION OF EMERGENCY TRIGGERS PENNSYLVANIA’S ANTI-PRICE GOUGING PROTECTIONS DURING AND AFTER THE EMERGENCY


The same emergency declaration, which triggers restrictions on Pennsylvania roads, also triggers Commonwealth price gouging restrictions.  Under Pennsylvania’s 2006 Price Gouging Law (73 P.S. § 232.4. Price gouging prohibited
     (a) Prohibition. During and within 30 days of the termination of a state of disaster emergency declared by the Governor pursuant to the provisions of 35 Pa. C .S. § 7301(c) (relating to general authority of Governor), it shall be a violation of this act for any party within the chain of distribution of consumer goods or services or both to sell or offer to sell the goods or services within the geographic region that is the subject of the declared emergency for an amount which represents an unconscionably excessive price.
     (b) Evidence of unconscionably excessive price.--It is prima facie evidence that a price is unconscionably excessive if, during and within 30 days of the termination of a state of disaster emergency, parties within the chain of distribution charge a price that exceeds an amount equal to or in excess of 20% of the average price at which the same or similar consumer goods or services were obtainable in the affected area during the last seven days immediately prior to the declared state of emergency.


FEDERAL REGIONAL WAIVER FOR HOURS OF SERVICE FOR CERTAIN CDL DRIVERS


The Federal Motor Carrier Safety Administration, known as the FMCSA, sometimes waive certain hours of service requirements for select CDL drivers carrying propane and heating oil on a regional basis due to winter storms.  We recommend you check with your counsel to determine if the duration of the waiver is extended or if it is applicable to your particular drivers and functions. 


WAGE AND HOUR GUIDANCE FOR EMPLOYER EXPERIENCING WEATHER EMERGENCIES


Employers who close operations due to weather must pay salary to “white collar” exempt employees under federal wage and hour law for any work week in which these employees performed some work, even if the facility is closed during a portion of that week.  Telecommuting/working from home also requires payment.   Additionally, be aware that "docking" pay for your exempt employees may interfere with the salary basis for wage/hour purposes, and jeopardize your "white collar" exemptions.  The exception is a white collar exempt employee who does not report to work for a full day or more for personal reasons.  We recommend liberal use of leave banks for such days to assure wage and hour compliance. 
Hourly employees need only be paid for time worked, regardless of whether your company closes or remains open.  Again, liberal use of leave is recommended for employees dealing with weather emergencies and employer closures. 


COLLECTIVE BARGAINING AGREEMENTS MAY REQUIRE PAYMENT


Don't forget to consult and follow Pennsylvania law, your Collective Bargaining Agreements (if you are unionized), and your weather emergency policy (if you are union-free).  Even though wage and hour law does not require payment to hourly employees during weather closures, some collective bargaining agreements, past practices and employer policies do require payment if you close or send employees home. 


BOTTOM LINE:  Planning and communicating such plans to employees is crucial.  Is your company prepared to operate during a weather emergency from your site or a remote location? Do your employees know how to determine whether or not you will be closed? Do you have an emergency plan in place if such a weather emergency hits during work hours?  If not, address those issues before the weather deteriorates. 


WISHES FOR A HAPPY HOLIDAY SEASON FROM THE ENTIRE TEAM AT SKARLATOSZONARICH


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