Employers should consider issues before and after a disaster

Attorney Patricia Nemeth of Detroit-based employment law firm Nemeth Burwell PC says the devastation of Hurricane Sandy should be a call to action for employers to address workplace issues before and after a disaster.

"Planning for natural disaster can be broken down into four categories," explains Nemeth. The categories are"

--Severe Weather/Shutdown and Recall Policy.

--Wage Obligations for Time Missed.

--Employee Volunteer Work.

--Additional Disaster Considerations.

Severe Weather/Shutdown and Recall Policy

Employers should not wait until disaster hits to let employees know how the company is going to respond. A 'Severe Weather Policy' explaining pre and post-weather shutdown practices can help coordinate communications with employees, reducing the negative business impact of a storm or natural disaster. The policy should include procedures for notification of closings and recall; expectations for how soon employees should return to work upon notification; and other policy considerations important to the employer's particular business or location.

"While many employers have general fire or evacuation procedures, they should also consider a plan of action for the type of disaster (or emergency) that may be specific to their locale or industry," explains Nemeth.

Although not all employers are required by federal law to have an emergency action plan, particular industries are required to do so. Because individual states have varying requirements, state law may play a role in the type of plan an employer adopts.

Wage Obligations for Time Missed

Nemeth notes that, unbeknownst to many employers, the Fair Labor Standards Act (FLSA) has regulations for both exempt and non-exempt workers during a forced shutdown where the employee is willing and available to work, but the employer has no work available.

"Under the FLSA, exempt employees paid on a salary basis should be paid their regular salary if they work any portion of their workweek, even if the employer's business is closed or operations were shut down for part of that week. Although nonexempt employees need only be paid for hours worked, those employees may be required, if able, to work from home or remote sites during a disaster or severe storm," explains Nemeth. "When that is the case, the employer is still obligated to keep track of the hours worked for these employees and pay them for time worked (including applicable overtime)."

Nemeth continues that, while federal law requires an employer with 100 or more employees to provide at least 60 calendar days advance written notice of plant closings affecting 50 or more employees at a single site, there are exceptions for unforeseeable business circumstances or natural disasters. There may also be applicable state wage and hour requirements, so employers should be aware of individual state requirements.

Employee Volunteer Work

Following a severe storm or disaster, there will likely be cleanup and repairs needed before a business is back up and running, but Nemeth says employers shouldn't necessarily consider asking employees to volunteer to help due to payment obligations and safety issues.

"Exempt employees paid on a salary basis who volunteer to help with cleanup efforts may not necessarily have to be paid for work beyond their regular salary," says Nemeth. "An issue may arise, however, if the employer assigns additional duties to the employee for an extended or sustained period of time."

In that scenario, the employee would be working in a different or modified capacity from his or her normal exempt duties and the employer should consider whether the prolonged assignment of manual labor alters the primary duties under the exemption. For nonexempt employees who volunteer to help, the employer generally must pay that employee for their time regardless of the assumed volunteer status of the employee. While employees may say they are willing to help for free, the legal obligations of the employer can still differ.

Beyond wage and overtime obligations, employers should also be wary of workplace safety issues during and after a disaster.

"Asking employees to perform tasks or volunteer to undertake certain responsibilities not within their usual job duties can present a risk. Depending on the nature and extent of the damage to an employer's business, even formerly routine tasks may be fraught with unforeseen danger. Employers need to minimize these types of risks and consider adverse possibilities."

Additional Disaster Considerations

Outside of general safety issues, unexpected hazards may exist related to structural damages or other health hazards caused by the disaster. Employers should make sure the place of employment is not only structurally sound, but clear of any chemical or waste hazards prior to recalling employees.

Additionally, in today's information age, loss of data and security can be devastating to a business. Employers should not only consider backing up critical data for the operation of their business, but backing up personnel files, required employment documents (such as I-9 forms) and other employee files that could be lost in a disaster as well. Off-site servers or third party vendors may be considered for this purpose; however, these options may pose potential data security risks as well, so employers should decide what is best for their individual business.

"A devastating natural disaster like Hurricane Sandy isn't always predictable; still, employers should devise plans to help deal with such an event. Anticipating and planning for catastrophic situations goes a long way towards minimizing potential risks and negative impact," adds Nemeth.

Published: Tue, Nov 27, 2012

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