If you have missed work because of the fires, or your workplace has been shut down because of them, you may have questions about your rights to pay and leave.

We address some of these questions below.

Am I entitled to be paid if I haven’t worked due to the fires?

If you are a non-exempt employee (i.e., generally paid hourly and entitled to overtime and meal and rest breaks), under California and federal law, an employer is only required to pay you for hours that you have actually worked.

In other words, employers are not required to pay non-exempt employees if they are not working.

Some employers may choose to continue paying wages to their non-exempt employees even if they are not working as a gesture of goodwill, but they are generally not obligated to do so.

What if I was required to work from home because of the fires?

The fires may have made it difficult for you to come into your workplace, even if your business was open, due to road closures or downed power lines.

If you worked while away from your workplace (for example, you were taking phone calls or working remotely using a computer), you are entitled to be paid for that work time, even if it was done away from the office.

What if I’m an exempt worker?

Exempt employees must be paid on a salary basis and earn a regular full-day’s pay when they work any part of the day, and they earn a full week’s pay if they worked any part of that week.

If, however, the business is closed for an entire workweek, the employer does not need to pay you for that time—in other words, the employer is allowed to reduce your pay by the amount you would have earned in that week at your regular salaried rate.

What if my employer asks me to be on-call as the business is getting back on its feet?

If you are required to remain on-call at the worksite or close to it, the employer may be required to pay you for all of this time (for example, if IT employees are asked to remain at the workplace as it is recovering from a power outage in the aftermath of the fires — in case they are needed to deal with the issues that come up with the computer system as it comes back on line — these employees must be paid for the time they are there even if they simply remain on-call and do not perform any work.

If, however, when you are on call, your movements are not restricted significantly (that is, you are free to engage in your own personal activities while on call), you might not be eligible to be paid unless you are actually called in to work — in which case you would be paid for the work you performed.

It’s not always a clear-cut issue. Factors considered are:

  • The degree of the restriction on your freedom
  • The geographical restrictions placed on you (i.e., how close do you have to stay to the workplace)
  • How quickly you need to respond to a call
  • Any other restriction that limits your ability to use your time as you would otherwise choose to

Keep in mind that a requirement that an employee call in at specific times or carry a cell phone so the employer can contact him or her if necessary does not necessarily render the time that you spend carrying the cell phone compensable, since the you may still be essentially free to do what you wish to do with your time.

What if my employer calls me in to work, and I need to wait at the workplace to see if there is work to be done?

For example, if you are required to come to work to wait for the power to be turned back on as the workplace is recovering from the fires, you must be paid for that time spent waiting.

If you are called in to work, and then sent home, you are entitled to be paid for at least ½ a day’s work.

Can I take a leave of absence?

You may be eligible to take unpaid leave under the Family and Medical Leave Act (FMLA) or California’s Family Rights Act (CFRA) for your own serious health condition caused by the fires or to take care of a child, spouse, or parent who has a serious health condition, if:

  • Your employer has at least 50 employees within 75 miles of your worksite
  • You have worked for your employer for at least 12 months
  • You have worked at least 1,250 hours within that 12 month period

Keep in mind that FMLA and CFRA leave is generally unpaid. FMLA and CFRA generally provide that your job remains protected while you are on leave.

FMLA provides up to 12 weeks of time off. This time can be taken all at once or intermittently.

You may also have rights under CFRA.

The intersection of the FMLA, CFRA and California leave rights are very complicated and dependent on the specific facts of the situation. If you have any questions about whether you are entitled to leave, contact us to speak with an employment attorney.

Can I receive unemployment assistance?

If you were laid off due to a lack of work caused by the fires, you may be entitled to unemployment insurance benefits.

To file a claim, call the Employment Development Department (EDD) or apply online (more details below).

Disaster Unemployment Assistance Program

In addition, if it turns out you are not eligible for unemployment insurance benefits under California law, the Federal Emergency Management Agency (FEMA) has a program, the Disaster Unemployment Assistance program (DUA), which is available to state and local governments after the president has declared an event a disaster.

DUA provides unemployment benefits and some reemployment services to people who have become unemployed as a result of a disaster and who are ineligible for regular state unemployment insurance.

DUA benefits can last for up to 26 weeks, as long as your unemployment continues to be a direct result of the fires.

Note that the DUA also covers self-employed individuals, owners of farms and ranches, farm and ranch workers. Note: To be considered for DUA, you must provide identification and prove citizenship.

To be eligible for DUA in the aftermath of the fires, individuals must:

  • Not be eligible for regular, state unemployment insurance benefits
  • Be unemployed as a result of the fires — that is, the fires caused you to lose your job
  • Be able and available for work (unless you were injured as a direct result of the disaster)
  • File an application for DUA within 30 days of the date of the announcement of availability of DUA (here, that means you need to file the application for DUA before November 16, 2017 if you were working in Butte, Lake, Mendocino, Napa, Nevada, Orange, Sonoma or Yuba counties)
  • Have not refused an offer of employment in a suitable job

In addition to the eligibility requirements identified above, one of the following conditions of unemployment must have occurred as a direct result of the fires:

  • You were unemployed for at least a week after the fires began
  • You are unable to reach your place of employment as a result of the fires
  • You were scheduled to start work, and the job no longer exists
  • You became the person who needed to support the household because the head of the household died as a result of the fires
  • You cannot work because of an injury caused by the fires
  • You lost a most of your income because the employer’s business was damaged or destroyed

Apply for Unemployment Insurance or DUA

You can file for benefits online, by phone, by mail, or by fax.

Online

https://eapply4ui.edd.ca.gov/

Phone

You can call EDD at one of the following numbers between 8:00 a.m. and noon, Monday-Friday:

Migrant & Seasonal Farm Workers

If you are a migrant and seasonal farm worker, EDD’s Migrant and Seasonal Farm Worker (MSFW) Outreach Program provides services statewide.

According to the EDD’s website, the MSFW program focuses on issues facing agricultural employers and workers classified as migrant, seasonal, or migrant food-processing workers.

Through the MSFW Outreach Program, the EDD is provides a full range of employment services to farm workers who otherwise would not have access to services through the normal intake process within the America’s Job Center of California network.

If you are an agricultural employer or a migrant or seasonal farmworker and would like additional information, you can contact your nearest America’s Job Center of California. To find your nearest center, you can call the America’s Service Locator at 1-877-872-5627.

More Questions?

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Our Team

Kristine has been named one of the Top 50 women lawyers in Northern California by Thompson Reuters and San Francisco Magazine, as well as one of the Top 100 Super Lawyers in Northern California.

Kristine Meredith

Danko Meredith

Mike has frequently listed as one of the Top 100 Super Lawyers in Northern California and has been this year named Trial Lawyer of the Year by the San Mateo Trial Lawyers Association. He has been honored with a nomination for Trial Attorney of the Year by the Consumer Attorneys of California. He has been named among the Best Lawyers in America consistently since 2009.

Mike Danko

Danko Meredith

In addition to his work representing victims of the PG&E gas line explosion and Butte fires, Dario helped to achieve a record-breaking settlement in an insider trading case implicating CEO of Oracle Larry Ellison. Dario in a Stanford Graduate and is often called upon by the courts to act as arbitrator in certain matters. He has served as adjunct professor of law at Canada College since 1998.

Dario de Ghetaldi

Corey, Luzaich, de Ghetaldi & Riddle

Amanda was appointed by the court to serve as co-liaison counsel for all the victims from the San Bruno fires. She currently serves as court-appointed co-liaison counsel for over 3,000 victims involved in the Butte Fire litigation. She has been a finalist for the Consumer Attorneys of California’s Woman Advocate of the Year Award. She also co-founded the San Mateo County Bar Association Legal Clinic Committee, which provides on-site legal services to residents of Shelter Network and Samaritan House’s homeless shelters on the Peninsula.

Amanda Riddle

Corey, Luzaich, de Ghetaldi & Riddle

Eric brings over two decades’ experience representing clients against large and powerful defendants including utility companies, banks, pharmaceutical companies, auto makers, tech companies, and others. The Daily Journal named Eric to its prestigious list of “Top Plaintiff Lawyers in California” for 2016 and Law360 recognized Eric as a “2016 Consumer Protection MVP,” the only plaintiff-side lawyer in the country selected in that category. Consumer Attorneys of California selected Eric as one of the finalists for the Consumer Attorney of the Year award for work in achieving $100 million settlement for customers against Chase Bank.

Eric Gibbs

Gibbs Law Group LLP

A.J. De Bartolomeo has been representing individuals in large and complex matters throughout the country for more than 20 years. She has extensive experience bringing claims mass claims against utility companies and others for property damage. A.J. is frequently appointed by federal courts to serve as a leadership lawyer in mass actions against large drug companies. Ms. De Bartolomeo has been named among the highest class of attorneys for professional ethics and legal skills with an AV-Preeminent rating by Martindale Hubbell, and was recognized by her peers as a Northern California Super Lawyer every year since 2013.

A.J. de Bartolomeo

Gibbs Law Group LLP