With Hurricanes Come Unprecedented HR Challenges

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[author: Michael Casey III]

Michael CaseyUnlike some states, Florida has no law which prohibits employers from taking action against employees who refuse to work because of an impending hurricane. But, when a hurricane or other emergency occurs, numerous federal employment laws are implicated.

EMPLOYEE PAY

When a natural disaster causes a reduction of work hours, the Fair Labor Standards Act—the federal wage-hour law— is implicated. The 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 nonexempt employees if the employer is unable to provide work to those employees due to a natural disaster. An exception to this general rule exists when there are employees who receive fixed salaries for fluctuating work weeks. 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 must 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 work week. But an employer may require exempt employees to use allowed leave for this time.

An exempt employee who chooses to stay home because of weather may be placed on leave without pay or be required to use accrued vacation time for the full day he or she fails to report to work. The Department of Labor considers an absence caused by transportation difficulties experienced during weather emergencies, if the employer is open for business, as an absence for personal reasons. If an employee is absent for one or: more full days for personal reasons, the employee's salaried status will not be affected if deductions are made from a salary for such absences. But a deduction from salary for less than a full-day's absence is not permitted.

I recommend caution, however, in docking salaried employees' pay, and suggest you first consult with legal counsel. Moreover, many employers instead 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 forty hours in a work week.

EMPLOYEE LEAVE AND SAFETY

Employees affected by a natural disaster are entitled to leave under the Family and Medical Leave Act for a "serious health condition" caused by the disaster. Employees who must care for a child, spouse or parent with a serious health condition may also be entitled to leave under the FMLA.

The Occupational Safety and Health Act and the National Labor Relations Act give employees the right to refuse to work in conditions, they believe are unsafe. The employees must have a reasonable, good-faith belief that working would be unsafe, but the law protects them even if they're honestly mistaken about the danger.

The purpose of OSHA is to ensure "every working man and woman in the nation safe and healthful working conditions." It applies to all employment performed in any workplace with the U.S. as long as the employer has one or more employees. Under OSHA, employers are responsible to protect employees from unreasonable danger in the workplace, including natural phenomenon that threaten employee safety and health.

Hurricanes and other disasters present obvious safety concerns that employers need to consider when asking employees to come into work during adverse weather, including vehicle accidents, slips and falls, flying objects, electrical hazards from downed power lines, exhaustion from working extended shifts and dehydration. An employee who reasonably believes he or she has been put in imminent danger by being forced to go to work during a hurricane may file a complaint with OSHA against the employer and then ask for whistleblower protection.

The NLRA generally governs relations among employers, employees and labor unions. Collective bargaining is one ofthe keystones of the NLRA. For both union and nonunion employees, refusing to work because of safety concerns can be a concerted activity that's protected by the NLRA. Concerted activity usually involves more than one employee, but it can consist of one employee acting on a matter that affects other workers.

Some collective bargaining agreements contain a force majeure clause, setting forth the employer's rights and duties in emergency situations caused by such things as unforeseeable forces of nature. In some situations, a disaster may force an employer to go out of business completely. Generally, an employer has the right to cease operations and go out of business completely without first bargaining with the union over its decision, but must bargain over the "effects" of the decision to close.

These are only a few of the federal laws implicated with disaster strikes. Even when businesses are closed and employers are not working, employers must make decisions regarding benefits. Employees injured during a hurricane may be entitled to reasonable accommodation under the Americans with Disabilities Act. Businesses need to be prepared for the unique, and often unprecedented, challenges that may come along with a hurricane.

Michael Casey heads the Duane Morris labor and employment team in South Florida. He has more than 40 years of experience in representing management in a variety of industries.

This article is reprinted with permission from the Daily Business Review.

Published In: Administrative Agency Updates, Conflict of Laws Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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