Even though there is no duty for any employer to retain employees while New York Governor Cuomo’s PAUSE Order remains in effect, employers who choose to retain employees, may have a duty to pay them.
To determine if you must pay your employees:
First, determine which employees are non-exempt employees and which are exempt:
- Non-exempt employeesare employees who are covered by the minimum wage and overtime provisions of the Fair Labor and Standards Act (FLSA). These employees are paid hourly for the time they have actually worked (and paid at an overtime rate for time worked over 40 hours in a work week).
- Exempt employees are paid on a “salary basis” and are exempt from FLSA’s minimum wage and overtime requirements because of the nature of their job requirements
Second, determine if your employees are performing any work while the PAUSE Order is in effect, either at the place of employment (if an essential business) or at home (if a non-essential business).
Working from home can include phone calls, e-mail, research, or COVID-19 related follow-up for the employer. Non-exempt employees must only be paid for the hours they worked. You need not pay them if they are not working.
If an exempt employee works for any part of the work week, he or she must be paid for the entire week. If an exempt employee does not perform any work for the entire work week, an employer may require the exempt employee to use their vacation or paid time off instead of paying the employee. However, if the employee has not worked the entire week and has no accrued paid time off, the employer is not required to pay the exempt employee’s salary.
If you have any questions about NY employers’ duty to pay employees when closed during COVID-19, please contact our office today to schedule a legal consultation and protect your legal rights. We are here to help.