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Trying to Find a ‘Safe Haven’ in the Storm: 9 Tips for Employers

What do the following popular movies and television shows have in common? Hint: All have a connection to #HurricaneFlorence—the number-one trending topic on Twitter today—which is supposed to make landfall along the East Coast soon:

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  • Weekend at Bernie’s, a 1989 comedy about a partying dead guy;
  • I Know What You Did Last Summer, a 1997 slasher movie about four young friends who are stalked by a hook-wielding killer one year after covering up a car accident;
  • Dawson’s Creek, a coming-of-age television series that ran from 1998 to 2003 and launched the careers of stars James Van Der Beek (Dawson), Katie Holmes (Joey), Josh Jackson (Pacey) and Michelle Williams (Jen);
  • One Tree Hill, an early-2000s television drama series that followed the lives of two half-brothers;
  • Safe Haven, a 2013 romantic thriller film adapted from the Nicholas Sparks novel of the same title that starred Julianne Hough and Josh Duhamel; and
  • Iron Man 3, a 2013 American superhero film based on the Marvel Comics character.

Answer: All six productions were filmed on North Carolina’s Brunswick Islands and in the greater Wilmington area, where forecasters say Florence could ride ashore late Thursday night. From storm surges and flooding to potential tornadoes and sustained winds exceeding 156 mph, the life-threatening impacts from the hurricane are expected to be far-reaching. At my home in Charlotte, we have extra water, batteries, and nonperishable food because power outages tend to be an issue (we were without power for more than two weeks after Hurricane Hugo did major damage to the western part of the state in 1989).

Key Issues for Employers

When natural disasters like hurricanes and floods occur, employers should be prepared to address the emergencies and resume business operations as soon as possible after the event. Here are some things to consider:

Emergency Response Team and Action Plan. Ideally, employers should have an action plan in place before the emergency, including managers and staff from different levels and departments in the organization. The team could be pulled from human resources, maintenance, safety, security, public relations, legal, and finance. While preparing a plan is a major step toward responding to disasters, it’s difficult to predict all issues that may occur. Accordingly, the plan should be tested at regular intervals to identify areas that require improvement.

Pay for Exempt Employees. The Fair Labor Standards Act (FLSA) prohibits reducing the pay of exempt employees based on the quantity or quality of work or in situations when they are ready, willing, and able to work but no work is available. Thus, employers that decide to close because of weather conditions must pay exempt employees their regular salaries for any shutdown that lasts less than one full week. If the business remains open but an employee fails to report to work, the employer can deduct an exempt employee’s salary for a full day’s absence. Employers, however, cannot deduct an exempt employee’s salary for less than a full-day absence without jeopardizing the individual’s exempt status.

Paying for Nonexempt Employees. Under the FLSA, employers generally aren’t required to pay nonexempt employees for any days that they don’t perform any actual work. Thus, employers aren’t required to pay employees for days they did not come to work or for days when the business was closed because of a weather event. This does not apply to nonexempt employees who are paid on a fluctuating workweek basis. These employees must be paid their full weekly salary for any week during which any work is performed, even if they miss some work due to the storm.

Storm-Related Absences and the Family and Medical Leave Act (FMLA). Although the FMLA regulations don’t specifically address natural disasters, the regulations state that if, for some reason, the employer’s business activity has temporarily ceased and employees generally aren’t expected to report for work for one or more weeks (e.g., a school closing for two weeks during the Christmas/New Year’s holiday or for summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. Thus, it appears that if an employer’s business is closed for a week or more because of Hurricane Florence, the days the business is closed would not count against an employee’s FMLA leave allotment.

If the business is closed for less than a week, the FMLA regulation pertaining to holidays likely would apply. That regulation provides: “[T]he fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.” Similarly, if a business is closed for a day or more during a week in which an employee is on FMLA leave, the entire week would count against his FMLA leave allotment. If, however, the employee is taking FMLA leave in increments of less than a week, only the days that the business is closed and on which he would be expected to work can be counted against his FMLA allotment.

On-Call Time. Under the FLSA, if the employer requires an employee to be on-call while the office is closed for a weather emergency and the employee can’t effectively use the time for her own purposes, the employer must pay the individual for the on-call time. Employers aren’t required to pay employees who are at home and available to the employer but able to use the time for their own purposes. State laws may impose different or more stringent requirements for on-call time.

Unemployment Compensation. Employees who are out of work for reasons other than their own misconduct generally are entitled to unemployment compensation as long as they have met the requirements of the state’s unemployment compensation laws. In some states, an employer’s unemployment compensation account isn’t charged when an employee is discharged because of a natural disaster. Employers should check the laws of the states in which they do business.

Work-Related Injuries Caused by Conditions Resulting from the Storm. Generally, employees who are injured during the course and scope of their employment are limited to workers’ compensation claims and can’t sue the employer in court over the injuries. If, however, the injuries are the result of an employer’s deliberate or intentional conduct rather than an accident, the employee may have the ability to sue the business in state court. Employers should check the laws of the states in which they do business.

Implications of the Occupational Safety and Health Act. The Occupational Safety and Health Administration (OSHA) states that employers are responsible for providing a safe and healthful workplace for their employees. Employers are required to protect the employees from the anticipated hazards associated with the response and recovery operations that the workers are likely to conduct. For more information about  the activities most commonly performed during hurricane response and recovery work and their associated hazards, go to http://www.osha.gov/dts/weather/hurricane/response.html.

Uniformed Services Employment and Reemployment Rights ACT (USERRA). This law may apply if an employee is part of an emergency services organization such as the National Guard or reserve units.  USERRA prohibits discharging, denying employment, or denying a promotion or any other benefit of employment because of the individual’s membership, performance of service, or obligation to perform service.

Special thanks to FordHarrison partner Sal Simao for his contributions to this blog post.