Law360 (September 14, 2018, 6:31 PM EDT) — The battering that Hurricane Florence dealt to the southeastern United States should serve as a fresh reminder to employers that advance planning is an important aspect of dealing with the chaos that nature can cause, experts say.
Although Florence is the latest hurricane to affect the U.S., it’s just one type of natural disaster that can cause both near-term and long-term complications for businesses and their workers.
“Employers have to be mindful about the human impact of these types of events,” said Hal Shillingstad of Ogletree Deakins Nash Smoak & Stewart PC. “As a company, particularly when there’s a significant event such as this, the employers that are supportive, reasonable and understanding of [their] workforce during these critical times … can really put them in a positive light both with their customers and vendors … and also with their employees in helping them navigate the chaotic event by those who are acutely impacted by these natural disasters.”
Here are five things employers should keep in mind when dealing with a natural disaster.
Have a Plan in Place
Before a disaster strikes — whether it be a storm with plenty of advance warning or an event like an earthquake that occurs without notice — employers should have an emergency response plan so they don’t get caught flat-footed when a dangerous situation arises, attorneys say.
The plan should include a detailed communication strategy through which designated members of management can quickly get important information to all relevant parties, according to Shillingstad.
That procedure can be used to inform workers about scheduling, inform them about benefits that might be applicable to their situation, make clients aware of potential production delays and provide any necessary information to the public, he said.
Akerman LLP employment partner Michelle Lee Flores suggested that such a plan could also include a hotline workers can call for updates and a “phone tree” so colleagues can stay connected with one another — which can be helpful if issues arise involving power outages or spotty phone service — as well as procedures for how employers should handle situations in which employees don’t return to work.
“Obviously, we’re human, we want to be mindful and thankful for the safety of our employees. But we also realize as employers we need to make sure that we can get back to the business of doing business,” Flores said.
Don’t Forget Wage Obligations
Just because a natural disaster may befall a business, employers still must adhere to requirements outlined in the Fair Labor Standards Act.
While employees who are nonexempt, hourly workers generally only have to be paid for time worked, salaried, exempt employees must be paid unless the business is closed for at least a week and the individual performs no work at all in that time.
Additionally, employers’ obligation under the FLSA to keep accurate records and track workers’ hours remains in place despite any natural disaster.
“The record-keeping obligations under FLSA are not suspended just because a storm might have hit a business,” Shillingstad said. “For hourly, nonexempt employees, [employers] still have to maintain their record-keeping obligations if they’re going to be working at all during the crisis, even though there may be an interruption with respect to power and electronic systems. Employers may have to come up with other mechanisms to record their time.”
David Barron of Cozen O’Connor noted that another big issue that confronts employers is simply making payroll, which is required regardless of any impediments caused by severe weather. Barron said many states also have requirements on how often people must be paid.
He also pointed out that large companies with headquarters in a disaster zone could experience network failures that could affect the pay of workers in other areas if employers don’t plan for that possibility.
“You can’t just say, ‘Well, our computers got taken out by the hurricane, so you can’t get paid.’ That’s not acceptable,” Barron said. “So there needs to be some sort of game plan for making sure people get paid and you can meet payroll.”
Know All Your Responsibilities
Besides wage laws, the fallout from a natural disaster could put numerous other legal requirements into play that normally wouldn’t be at the forefront of employers’ minds, and businesses should be aware of those requirements as they seek to resume normal operations.
For example, given the possibility of physical damage occurring to an employer’s worksite, Shillingstad pointed out that employers are obligated under the Occupational Safety and Health Act to not put their workers at an unreasonable risk of harm.
“If they are going to be working at a job location, employers are responsible for protecting their employees from those unreasonable dangers,” Shillingstad said. “That would include barricading off hazardous areas, providing personal protective equipment for employees who are going to be on site where there could be some hazards of falling debris. They can’t forget about OSHA if they are going to have employees show up at the worksite.”
Shillingstad also said some businesses may have workers who double as emergency responders — such as members of the National Guard — who get called to assist with disaster response.
In that situation, employers are required under the Uniformed Services Employment and Reemployment Rights Act to accommodate those requests and should plan ahead for those leaves, he said.
Be Mindful of Workers’ Struggles
Employers should keep in mind that any natural disaster could have a negative impact on the personal lives of their workers, including potential injuries or deaths to family members or property damage, attorneys said.
As a result, Shillingstad said businesses should maintain enough flexibility to help those individuals cope with the situation and ultimately get back on their feet. Some examples of things employers might consider doing include having contact information at the ready for any insurance claims a worker may need to make and giving workers reminders about all the company benefits that are available to them, he said.
Moreover, for businesses that have operations in multiple areas, including locations outside the disaster zone, Shillingstad said employers can have workers from those other locations help cover for workers in the affected area.
“A company may want to consider bringing in some of those out-of-area employees to assist with the resumption and commencement of operations in the impacted area, because in the impacted area those employees who worked [there] may have to deal with their personal obligations,” Shillingstad said.
Barron also offered a few other options employers can consider: giving hourly employees an extra day or two of pay even if they didn’t actually work the hours because of the severity of the storm, being flexible and understanding with respect to leave entitlements for issues that could be covered under the Family and Medical Leave Act or other leave statutes for employees that have to care for family members, and doing little things like buying meals for workers to reward them for getting to work when it’s difficult.
Tread Carefully if Disciplining Absentee Employees
While many businesses will choose to temporarily close shop during a weather emergency, some will remain in operation, either by necessity or by choice.
But in dangerous situations, many workers won’t report for shifts, particularly if — like in the case of Florence — areas are placed under a state of emergency or are subject to mandatory evacuation orders.
Barron noted that employers in some industries, like chemical plants and refineries that can’t shut down, may not have a choice but to require at least a skeleton crew of employees to report to work.
In those situations, he said, employers can have plans in place, like arrangements with local hotels or child care accommodations, to provide a safe place for workers and their families to stay.
Barron also said that Texas, the state where his practice is based, has a law that protects workers from termination if they’re responding to a governmental evacuation order, but that other states like the Carolinas don’t have similar laws in place.
When there’s “no specific state law on point,” Barron said, “it would be very risky to terminate someone evacuating under a state and local evacuation order” and it “probably would be an issue of termination in violation of public policy.”
“I would say most employers wouldn’t terminate someone who’s under an evacuation order,” he added. “You don’t want to be in front of a jury in that kind of case, especially a jury in the same area who went through the same disaster.”
Josh Van Kampen of Van Kampen Law PC, a plaintiffs’ side employment boutique located in Charlotte, North Carolina — one of the states affected by Hurricane Florence — said, however, that some employers in his state “tend to be pretty brazen and that’s probably true in other states as well,” and that he wouldn’t be surprised if smaller businesses in particular take adverse actions against workers.
Van Kampen also pointed out that guidance posted on the North Carolina Department of Labor’s website on various disaster-related issues, which includes a reminder that workers in the state are “at-will,” essentially gives employers a green light to force employees to go to work even after state officials have declared a state of emergency and ordered residents to evacuate.
“We actually think that it would violate North Carolina public policy for an employer in an evacuation zone to require an employee to stay and report to work,” Van Kampen said, adding that he believes the guidance should be removed or that Labor Commissioner Cherie Killian Berry should at least make a public pronouncement encouraging employers not to make people go to work during a weather crisis.
“The secretary of labor that we’ve had in North Carolina for at least the last 10 years is very known to be pro-employer and unfortunately … it offends us but doesn’t surprise us that she would put employer’s rights over basic employee safety even in the face of a hurricane,” Van Kampen said.