On October 17, 2017 the Puerto Rico Secretary of Labor and Human Resources ("Secretary") issued Opinion No. 2017-001 ("Opinion") regarding the compensation of exempt and non-exempt private sector employees for workdays interrupted caused by Hurricanes Irma and María.
The Secretary explains that non-exempt employees are compensated for hours worked only. Consequently, employers are not required to pay the hours that non-exempt employees would have worked had the natural disaster not occurred. Employers should keep in mind that hours worked also include: (1) hours the employee is allowed to perform work that benefits the employer even when the employer has not required the employee to do so, (2) hours worked remotely, and (3) the waiting time of an employee. For example, compensable time for waiting time includes the hours in which employers requires or allows employees to remain at work despite not being able to perform their duties because there is no water, electricity, internet or other factor that prevents them from doing their job.
Although there is no legal obligation to do so, the Secretary encourages employers to pay the wages of their non-exempt employees even if they do not work and to not deduct these payments from otherwise paid leaves. In the alternative, employers may credit these hours from accrued but unused vacation leave.
The Secretary explains that pursuant to the Fair Labor Standards Act ("FLSA"), exempt employees are compensated according to the agreed salary and are excluded from benefits provided by law such as, accrual of vacation and sick leaves. Exempt employees are entitled to a full compensation for each week of work in which they perform any work- regardless of the hours actually worked. In such cases, employers that ceased operations for less than a week due to hurricanes Irma and Maria must pay the entire workweek. This applies even if the employees worked only a partial day. An employer may also deduct the hours or days on which the employee does not work against a benefit not required by law, such as vacation leave. If the employee was called in to work and is absent for personal reasons, such as bad weather, lack of fuel access, transportation problems or impassable roads, the employer may deduct those full days from an employee's weekly salary.
Finally, the Secretary recognizes that private employers can provide greater benefits than those established by law. Also, that if there is a collective agreement or an individualized employment contract, the compensation for either exempt or non-exempt employees should be made pursuant to the terms of such contracts or agreements, and in the employee's favor.