Although one can never be fully prepared for a natural disaster, it is important to be aware of the federal and state laws implicated in such situations. With hurricane season in full swing and in the aftermath of Hurricane Florence, employers trying to limit the business disruption or mitigate the amount of time their business will be closed should use this quick go-to guide for legal insight and practical advice.
If a work site is closed because of weather or unable to reopen because of damages and/or loss of utilities, am I required to pay affected employees?
The Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees only for hours that the employees have actually worked. Therefore, an employer is not required to pay non-exempt employees if the employer is unable to provide work to those employees due to a natural disaster. An exception to this general rule exists where there are employees who receive fixed salaries for fluctuating workweeks. These are non-exempt employees who have agreed to work an unspecified number of hours for a specified salary. An employer must pay these employees their full weekly salary for any week in which ANY work was performed.
For exempt employees, an employer will be required to pay the employee’s full salary if the worksite is closed or unable to reopen due to inclement weather or other disasters for less than a full workweek. However, an employer may require exempt employees to use accrued allowed leave for this time.
Is it lawful to dock salaries of exempt employees who do not return to work when needed after an emergency or disaster?
If the employer is open for business, the Department of Labor considers an absence caused by transportation difficulties experienced during weather as an absence for personal reasons. Under this circumstance, an employer may dock the employee’s pay (or require the employee to use accrued vacation time) for the full day that he or she fails to report to work. It is important to note, however, a deduction from salary for less than a full day’s absence is not permitted.
We recommend caution, however, in docking salaried employees’ pay, as state laws may differ and suggest employers first consult with legal counsel. Moreover, many employers have found it preferable to require employees to “make up” lost time after they return to work, which is permissible for exempt employees. This practice is not allowed for non-exempt employees, who must be paid overtime for all hours worked over 40 in a workweek.
Can an employer lawfully require employees to work through a hurricane or other natural disaster even if there is an evacuation order?
Some states prohibit an employer from disciplining or terminating employees for leaving work in response to an evacuation order. Texas, for example, prohibits an employer from discriminating against an employee who “leaves the employee’s place of employment under an emergency evacuation order.” See Texas Labor Code § 22.002. Many other states prohibit employers from terminating employees under the public policy exception to employment at will. In other words, an employee may be able to file suit under that state’s common law protections prohibiting retaliatory actions against employees because — for example — they have refused to participate in an illegal act (such as disobeying a mandatory evacuation order).
Under federal law, employees leaving work to assist with relief efforts as part of “uniformed service” under the Uniformed Services Employer and Reemployment Rights Act of 1994 (USERRA) are similarly protected. Employees falling within the definition of uniformed service may include National Guard service if called by the president, active or reserve military duty, or intermittent disaster-response service under the National Disaster Medical System qualifies for USERRA protection irrespective of whether the individual receives compensation for such participation. See 38 U.S.C. § 4303(13); 42 U.S.C. § 300hh-11(d)(3)(A).
What are the common wage and hour pitfalls that employers should be aware of following a hurricane or other natural disaster?
An employee who is required to remain on call at the employer’s premises or close by may be working while “on call” and the employer may be required to pay that employee for all of his or her time. For example, maintenance workers who remain on premises during a storm to deal with emergency repairs must be compensated, even if they perform no work, if they are not free to leave at any time.
If an employee is required to wait, that time may be compensable. For example, if employees are required to be at work to wait for the power to restart, that is considered time worked.
Employees of private, nonprofit organizations are not volunteers if they perform the same services they are regularly employed to perform. They must be compensated for those services. In addition, private employers should generally be cautious about having employees “volunteer” to assist the employer during an emergency, if those duties benefit the company and are duties regularly performed by employees.
If a work site or business is permanently damaged and will not reopen, what notice must be provided to affected employees?
The WARN Act, a federal law, imposes notice requirements on employers with 100+ employees for certain plant closings and/or mass layoffs. However, an exception does exist where the closing or layoff is a direct result of a natural disaster. Nonetheless, the employer is required to give as much notice as is practicable. If an employer gives less than 60 days’ notice, the employer must prove that the conditions for the exception have been met. If such a decision is contemplated, it is advisable to consult with legal counsel about the possible notice requirements to ensure compliance with the WARN Act.
How can employers minimize the amount of employment disruption to their business and operations from hurricanes? In other words, what are some tips and best practices employers should utilize to get their businesses back up and running as soon as possible?
Identify your “essential employees.” These are employees who you cannot require to be at work during a hurricane or evacuation but those you believe are vital to the continued operations of your company. This team of decision-makers should have authority to make crucial business or human resources decisions in the midst of the hurricane or another disaster. Determine what incentives you can provide these employees to entice them to work during a disaster or to return to work as soon as possible. These incentives can include compensation, shelter, hot meals, fuel, as well as arrangements for family members. Unionized employers should be aware that any changes to the terms and conditions of employment may have to be negotiated with the collective bargaining representative.
Establish a communication plan. This will include identifying ways to keep the lines of communication open with your employees even if power is out in the local community. Collect primary and secondary contact sources from your employees. Consider establishing a toll-free phone line or using the company’s social media for a centralized location where employees can obtain updated information regarding the company’s status during an emergency.
Establish a contingency plan to ensure the security of payroll data and the ability to continue payment of wages to your employees if offices are damaged or power is lost. Review your existing policies to determine how to distribute paychecks to employees who cannot come to work because of weather or lack of power.
Review applicable leave policies and procedures to address and allow for disaster-related leave requests, including how such leave will be treated (i.e., paid or unpaid).
Establish a contingency plan to address the needs of those employees who may be temporarily living in company facilities during a storm or disaster. Ensure you can provide such necessities as gas, food, and shelter to these employees.