California wildfires – FAQs on laws enforced by the Labor Commissioner’s Office
- Can an employer require a worker to perform services in an area that is under a mandatory evacuation order?
- Is an employee entitled to compensation for any other work interruptions caused by the power outages or wildfires?
- If an employee is exempt, are they entitled to a full week’s salary for work interruptions caused by the power outages or wildfires?
- Is an employee entitled to additional compensation for disruptions caused for power outages or wildfires when the employee’s work schedule is subject to a bonafide Alternative Workweek (AWW) arrangement?
- Is an employee entitled to be paid for leave caused by power outages or wildfires?
Requiring a worker to perform services in an area that is under a mandatory evacuation order may be in violation of certain Government Code sections, Penal Code sections and/or Labor Code sections. For purposes of enforcement of the Labor Code, an employer may not retaliate against employees that engage in a protected activity that may include following a mandatory evacuation order.
Generally, Labor Code section 1102.5(c) provides that an employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
Also, Labor Code section 6311 generally provides that no employee shall be laid off or discharged for refusing to perform work in the performance of which this code, including Section 6400, any occupational safety or health standard or any safety order of the division or standards board will be violated, where the violation would create a real and apparent hazard to the employee or his or her fellow employees. Any employee who is laid off or discharged in violation of this section or is otherwise not paid because he or she refused to perform work in the performance of which this code, any occupational safety or health standard or any safety order of the division or standards board will be violated and where the violation would create a real and apparent hazard to the employee or his or her fellow employees shall have a right of action for wages for the time the employee is without work as a result of the layoff or discharge. Note that under Labor Code section 6303, "employment" as defined contains an exception for "household domestic service," which may apply to Labor Code section 6311.
Employees are to be compensated for all hours worked, which includes all time an employee is under the control of the employer, even if they are not working.
The term “hours worked” includes both “all time the employee is suffered or permitted to work, whether or not required to do so,” and all “time during which an employee is subject to the control of an employer.” Restricting employees to the employer’s premises, or worksite, means that the employee is subject to the employer’s control so as to constitute “hours worked .” See Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, and Bono Enterprises v. Labor Commissioner (1995) 32 Cal.App.4th 968. Under such circumstances, the employees must be paid their regular rate of compensation (which cannot be less than the minimum wage), or any overtime rate, if applicable.
If an employer facing a power outage requires its employees to remain on the premises and wait for the power to return so as to promptly resume operations once power is restored, the time during which the employees are restricted to the premises constitutes compensable "hours worked" within the meaning of the Wage Orders, and the employees must be paid at the regular rate for all such time. If the employer allows the workers to leave the premises, but significantly restricts their movement, the employees must also be paid for such hours worked being “standby”.
An employee may also be entitled to split shift premiums if an employer facing power outages sends its workers away from the premises with instructions to return at a later time during that same workday. The Wage Orders define a "split shift" as "a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods," and provide that "when an employee works a split shift, one hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment."
An exempt employee is entitled to recover wages for the full week if that employee is suffered or permitted to work anytime within that workweek. (See discussion at Section 51.6.15 of the Enforcement Policies and Interpretations Manual).
If an employer facing a power outage is on an AWW, and the employer sends its workers home during a regularly scheduled workday, with instructions that the workers come in and work later in the week to make up their lost hours on a day that is not a regularly scheduled workday, the first 8 hours worked on the non-regularly scheduled workday must be paid at time and a half, and all hours worked in excess of 8 hours on the non-regularly scheduled day must be paid at twice the regular rate.
However, if an employer on an AWW anticipates that it can reduce its exposure to power outages by occasionally shifting the scheduled days (say from a 4/10 Mon-Thurs to a 4/10 Thurs-Sun), and gives its workers at least a week's notice of the schedule change, the AWW remains valid. For enforcement purposes, DLSE will allow an employer to shift schedules up to 4 times in a year. More frequent changes will invalidate the AWW.
If there is a vacation or paid time off policy, an employee may choose to take such leave and be compensated provided that the terms of the vacation or paid time off policy provides for such leave.
Paid sick leave may apply if the employee is qualified to receive such leave and requests to take leave for a sick reason. The paid sick leave law provides that an employer shall provide paid sick days for the following purposes:
- (1) Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.
- (2) For an employee who is a victim of domestic violence, sexual assault, or stalking, the purposes described in subdivision (c) of Section 230 and subdivision (a) of Section 230.1.
If the employee qualifies for sick leave and requests sick leave, the employer must provide such leave and must compensate the employee under California Paid Sick Leave laws.
An employee may have a valid claim of retaliation if an adverse action results from an activity that is protected. Visit the Labor Commissioner’s webpage Laws that Prohibit Retaliation and Discrimination for a list of retaliation codes and more information on how to file a claim.
For example, Labor Code section 98.6 protects an employee filing or threatening to file a claim or complaint with the Labor Commissioner, instituting or causing to be instituted any proceeding relating to rights under the jurisdiction of the Labor Commissioner, or testifying in any such proceeding, complaining orally or in writing about unpaid wages, or for exercising (on behalf of oneself or other employees) any of the rights provided under the Labor Code or Orders of the Industrial Welfare Commission, including, but not limited to, the right to demand payment of wages due, the right to express opinions about, support or oppose an alternative workweek election, or the exercise of any other right protected by the Labor Code. In addition to other remedies that might be available, a civil penalty of up to $10,000 may be awarded to an employee for each violation of Labor Code section 98.6. Also, protects an employee who is a family member of a person who has or is perceived to have engaged in any protected conduct.
Wildfire smoke and cleanup presents hazards that employers and workers in affected regions must understand. Smoke from wildfires contains chemicals, gases and fine particles that can harm health. Hazards continue even after fires have been extinguished and cleanup work begins. Proper protective equipment and training is required for worker safety in wildfire regions.
Power outages can also present electrical and other hazards for workers. Proper installation and use of generators can prevent electrocution hazards. Workers must also be aware of the potential of electrocution or being injured by moving parts of machinery and other equipment when power is restored. Workers can also face health hazards from working without electricity in unventilated areas because ventilation systems are not working.
For more information visit Worker Safety and Health in Wildfire Regions.