Q:  We recently hired an Operations Manager and classified his position as exempt.  Not two days after we hired him, our business, an assisted living facility, was hit with extensive flooding in our basement and some living areas.  The flooding has occupied most of his time. He has been doing everything from checking pumps to helping to relocate residents, working on average 10 hours per day.  Do we run a risk of him claiming that he is owed overtime hours since he has been performing mostly what we consider to be nonexempt work?

– The short answer is possibly not, as there are provisions in the federal Fair Labor Standards Act (FLSA) law and regulations that make exceptions for emergencies. As with many sections of the FLSA, the primary concern is whether the position retains its exempt status while the employee performs nonexempt duties in the workplace. In this case, the question is whether an employee’s classification would remain exempt while an exempt employee performs emergency-related duties that may otherwise be nonexempt duties. Much of the remainder of this answer is drawn from the FLSA regulations.

It is important to remember that an emergency is a temporary event of limited duration, though each claim of an emergency event must be rooted in its own specific circumstances.

Section §541.706 Emergencies.

There are two main components of this section of the FLSA regulations.

Clause (a) provides that an exempt employee will not lose the exemption by performing work of a normally nonexempt nature because of the existence of an emergency.  When an employer seeks to maintain the exempt status for a position in which the exempt person performed nonexempt labor during an emergency the key question is, can the employer demonstrate it was an emergency to the US Department of Labor?

Emergency

The regulation defines an emergency as a situation that:

– threatens the safety of employees,
– constitutes a cessation of operations or serious damage to the employer’s property, or
– is any work performed to prevent such results,

If the emergent situation falls into one of these categories, it is considered exempt work when performed by an employee who is otherwise properly classified as exempt.

Nonemergency

Clause (b) spells out what an emergency is not.

– An “emergency” does not include occurrences that are not beyond control or for which the employer can reasonably provide in the normal course of business.
– Emergencies generally occur only rarely and are events that the employer cannot reasonably anticipate.

Clause (c) provides examples of what may or may not be considered emergency work and thus not jeopardize an employee’s classification for performing those duties. The following examples illustrate the distinction between emergency work considered exempt work and routine work that is not exempt work:

– A mine superintendent who pitches in after an explosion and digs out workers who are trapped in the mine is still a bona fide executive.
– Assisting nonexempt employees with their work during periods of heavy workload or handling rush orders is not exempt work.
– Replacing a nonexempt employee during the first day or partial day of an illness may be considered exempt emergency work depending on factors such as the size of the establishment and of the executive’s department, the nature of the industry, the consequences that would flow from the failure to replace the ailing employee immediately, and the feasibility of filling the employee’s place promptly.
– Regular repair and cleaning of equipment is not emergency work, even when necessary to prevent fire or explosion; however, repairing equipment may be emergency work if the breakdown of or damage to the equipment was caused by accident or carelessness that the employer could not reasonably anticipate.

In practice, the determination of whether a particular situation was an emergency will depend upon the ability of the employer to explain and justify the possible emergency if or when an employee files a complaint with the Department of Labor and a representative from DOL visits the employer to discuss what happened during the particular “emergency”.

Any AIM member interested in discussing this or any other HR-related matter may call the AIM Helpline at 1-800-470-6277.