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New York Transit Strike FAQs

By Richard I. Greenberg and Paul J. Siegel
  • December 21, 2005
  1. Q:        Does an employer have to pay non-exempt employees if they do not show up for work or if they show up late?
    A:        Subject to an employer's personnel policies or a contract that may be in effect, a non-exempt employee need only be paid for time actually worked.  Accordingly, if a non-exempt employee does not report to work, no wages must be paid for the day.  A non-exempt employee who reports to work late must be paid for time worked.  Additionally, an employer is not required to extend the work day to provide the employee with an option to make-up time (but could decide to do so).
  2. Q:         Is there any minimum that must be paid if a non-exempt employee shows up for work?
    A:        New York State has reporting pay requirements.  If a non-exempt employee reports to work as scheduled without being told not to report, depending on the industry, the employee may be required to be paid for a set minimum number of hours of work at the minimum wage even if work is unavailable.  If the gross pay for the week is high enough to provide a payment equal to or greater than the minimum wage for all hours of work plus the "show up" time, then an additional payment is not required.
    Note:  If the business is not open, the non-exempt employee does not need to be paid for the day, but may be due reporting pay if their work day was not cancelled.
  3. Q:       Must an employer pay exempt employees who do not show up for work (assuming the business is open)?
    A:        Subject to any governing policy or contract, if the business is open and an exempt employee does not report to work or perform any work from home during the day, the employee need not be paid for the day.  In contrast, however, if the business is not open, the exempt employee must be paid for the day.
  4. Q         Is there any legal obligation to reimburse employees for extra expenses incurred due to the transit strike (i.e., additional costs of commuting) or to pay them for extra travel time to or from home?
    A:        No.
  5. Q:        Must an employer allow employees who do not report to work during the transit strike to use accrued paid sick days, personal days or vacation days to make up for missing a whole work day or a part of that day?
    A:        The employer should follow its regular practice with regard to when and how paid time off can be used.  In light of the burden imposed by the strike upon your staff, though, an employee-friendly approach is advisable.
  6. Q:        Must an employer modify its work schedule, or a disciplinary program that addresses tardiness, to accommodate employees during the transit strike?A
    A:        While there is no legal requirement, we suggest doing so if lateness is due to factors outside the employees' control. 

Jason Zoldessy, an associate in the New York City office of Jackson Lewis LLP, assisted in the preparation of this article. 

©2005 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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