Understanding and Responding to Licensing Boards
March 13, 2019
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As they say, an ounce of prevention is worth a pound of cure.
In that spirit, what follows are certain pay and leave issues employers may confront during times of natural disaster – all of which are better to be thought about ahead of time, to the extent possible, instead of "at the moment" once a natural disaster strikes.
Pay Issues
Non-Exempt Employees
The Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees only for hours actually worked. Non-exempt employees typically (although not always) are paid an hourly rate for their work. Therefore, in those situations, non-exempt employees do not have to be paid for any hours that they do not work, whether or not due to the natural disaster. However, if a non-exempt employee is instead provided with a guaranteed salary, the employee must be paid their full weekly salary for any week during which ANY work is performed for the employer (with a few limited exceptions typically inapplicable to natural disasters).
The time employees spend "waiting" to perform work, either on the company's premises or off-site, is compensable time. For example, if employees are required to wait at the facility until the power is restored or while the employer decides whether to close early due to inclement weather, that time is compensable.
Employers may require non-exempt employees to remain "on call" while they monitor the development of the natural disaster. An employee required to remain "on call," either on the employer's premises or so close that the employee cannot use the time for their own purposes, is working and must be compensated.
Exempt Employees
Regarding exempt-level employees, employers are required to pay them their regular pay for that workweek unless the natural disaster dictates that the business be closed (or the employee cannot perform work remotely) for the ENTIRE workweek. However, employers may require exempt employees to exhaust any accrued but unused paid leave for this time.
Volunteers
Another issue that sometimes arises is when an employer marshals its employees to provide volunteer services to other employees or to the community. If the volunteer work that employee is doing mirrors, or is substantially similar to, work that they otherwise would perform for their employer, such "volunteer" time may actually be compensable time. Further, if the volunteer work could be reasonably perceived by an employee as required, and that employee is injured, the employee also may file and be able to prevail on a workers' compensation claim.
Also, employees who are unable to work due to a natural disaster may be eligible to apply for and receive unemployment benefits. North Carolina employees who are out of work because of a natural disaster may also qualify for Disaster Unemployment Assistance benefits.
Safety Issues
The Occupational Safety and Health Administration (OSHA) requires employers to provide safe and healthy working conditions. Employers should consider whether requiring employees to report to work during a natural disaster could pose safety concerns and/or trigger employees to file a complaint with OSHA. Additionally, employers should exercise caution and develop a system to get employees out of the workplace safely when faced with the threat of a natural disaster.
Leave Issues
Many of the usual cast of "leave" characters also come to bear during natural disaster scenarios. For example, an employee who is entitled to take, and does meet, Family Medical Leave Act (FMLA) requirements for an FMLA-covered entity may take unpaid time off from work. Any employee who, because of a physical or mental impairment, requires an Americans with Disabilities Act (ADA) accommodation to perform their job, including time off from work, should be granted such a request, assuming that it does not cause an undue hardship for the business. For those who employ veterans, it will be necessary to bone up on the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) right to reemployment requirements for returning service members.
A final word of caution - employers should not take adverse action against employees for engaging in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Employees may complain (possibly online) during times of natural disaster that their employer is being feckless in its handling of the disaster. Terminating or otherwise disciplining employees for these comments/actions risks the ire of the National Labor Relations Board (NLRB).
Takeaway
As with most human resources issues, the primary goal should be not to respond with a knee-jerk reaction to pay, leave, and/or other employee issues when natural disasters strike. A considered reaction, with the advice of legal counsel, is always prudent.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.
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