Living and working in Florida has many advantages, but each year brings a new hurricane season and the threat of potentially damaging storms. An employer’s hurricane preparations should include awareness of the employment laws, which might be implicated in the event of a storm as well as planning to address storm-related issues.
This article summarizes common issues that often arise in the context of a hurricane or tropical storm. Of course, this information is not intended to as legal service. Employers should consult with experienced counsel to ensure appropriate familiarity with potential issues prior to taking action, which could result in legal exposure or liability.
Fair Labor Standards Act
The Fair Labor Standards Act (FLSA) – the federal overtime and minimum wage law – is often implicated when a storm is approaching or has already made landfall.
- Non-exempt employees. For nonexempt or hourly employees entitled to overtime, the employer is not required to pay such employees if the business is closed due to a storm, although the employees may be entitled to receive accrued paid time off (PTO) during that period. However, employees working under a “fluctuating workweek agreement,” which involves a minimum salary for up to 40 hours with “half-time” for overtime hours (instead of the typical time-and-one-half), are generally required to be paid the minimum salary for any workweek in which they perform any work.
The FLSA requires employers to keep and maintain accurate time and payroll records, but the law does not specifically address how to proceed if such records are lost or destroyed in a storm. An employer could pay employees based on the number of hours normally worked. A likely better solution would be to ask each employee to accurately estimate the hours worked, while obtaining written authorization to make corrections should more accurate time records be found.
- Exempt employees. If a business is closed for less than a full week due to a storm, then salaried-exempt employees should receive their full week’s salary if they performed any work during that week. If the business is open but a salary-exempt employee chooses not to work, then the employee does not need to be paid for any day on which the business is open and the employee performs no work. As with non-exempt employees, an exempt employee can use accrued PTO to make up any shortfall.
Safety and Unemployment Issues
Florida law does not expressly protect employees who refuse to work because of an impending storm or because the employee believes it’s unsafe to return to work. However, the federal Occupational Safety and Health Act (OSHA) requires employees to have safe and healthy working conditions. An employee who reasonably believes he or she will be put at imminent risk of danger by being forced to work may file a complaint against the employer with the Occupational Safety and Health Administration, and the employee can request whistleblower protection.
If an employee is laid off due to a natural disaster, the employer’s account is not charged for any resulting unemployment benefits. In one case, the court found that an employee’s failure to report to work without good cause after being expressly ordered to do so due to Hurricane Ivan constituted misconduct connected with work which disqualified the employee from receiving unemployment benefits.
Leave and Accommodation Issues
- The Family and Medical Leave Act (FMLA) generally applies to companies with 50 or more employees, although an individual employee cannot be covered until the one year anniversary of employment. A covered employee is entitled to leave under the FMLA for a serious health condition caused by or related to a hurricane or tropical storm. A covered employee is also entitled to leave in order to care for a child, spouse or parent with a serious health condition. Possible storm-related FMLA issues could arise if an employee’s family member requires refrigerated medication or electrical equipment which is not available due to a power outage.
- For those employees who are in the National Guard, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the jobs of National Guard personnel called up in the event of a natural disaster.
- If an employee has a disability under the Americans with Disabilities Act, or suffers such a disability due to a storm, then the employee may be entitled to a reasonable accommodation if it would not place an undue hardship on the employer’s business.
Put it in Writing
Employee handbooks should include policies and procedures to account for hurricanes, tropical storms and other natural disasters. Such policies should cover the circumstances under which the business will close and reopen, along with procedures for notifying employees and for employees to update the employer on their status or health. The policies may also include job-specific assignments, such as describing which categories of employees will perform particular storm preparation and recovery tasks.
Hope for the Best but Plan for the Worst
A business should not wait until a hurricane warning is declared to begin considering these and other labor and employment law issues. Proper planning can significantly reduce the stress and disruptions which naturally accompany hurricanes and tropical storms, while helping to boost employee morale during difficult times.
Adam S. Chotiner is a Shareholder with Shapiro, Blasi, Wasserman & Hermann, P.A. one of the largest independent full-service litigation and transactional law firms in South Florida. He is Board Certified in Labor and Employment Law by The Florida Bar and oversees the firm’s Labor and Employment Law practice group. He may be reached at (561) 477-7800 or achotiner@sbwh.law.
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