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Weathering an Employer's Duties During the Storm

September 08, 2021

By: Rachel D. Gebaide, Morey Raiskin & Abood Shebib

Hurricane season is only half over, with Hurricane Ida leaving a trail of damage across Louisiana and beyond, and Hurricane Larry swirling in the Atlantic Ocean, although the storm is not expected to make landfall in the U.S. Prudent employers may wish to institute (or update) emergency preparedness plans to ensure employee safety, continuity of operations, and records and asset preservation. However, it is also important for employers to consider potential HR-related legal issues and liability that could arise before, during and after a major storm.

Before the Storm

A common issue employers face when a hurricane is approaching is whether it can require employees to report to work despite the hurricane, and whether the employer may take adverse action against an employee who fails to report to work because of the hurricane. An employer likely can require an employee to report to work, even where an evacuation order for the area has been issued.

In Gillyard v. Delta Health Group, Inc., 757 So. 2d 601 (Fla. 5th DCA 2000), the Florida Fifth District Court of Appeals, which has jurisdiction over Brevard, Lake, Orange, Osceola, Seminole, and Volusia counties, among others, dismissed an employee’s complaint against her former employer who terminated her employment when she failed to report to work following the issuance of mandatory evacuation orders because of severe fires. Although an employer may be within its rights to terminate an employee who fails to report to work in these circumstances, employers should prioritize the safety of employees and consider the risk of liability where an employee is injured as a result of working in unsafe conditions.

During the Storm

Where employees are excused from work as a result of a hurricane, an employer does not have to pay hourly employees who are “non-exempt” from the provisions of the Fair Labor Standards Act for the hours missed, because it is non-working time. Similarly, if the same hourly employee decides not to come to work because of the storm, the employer need not pay for non-working time.

On the other hand, an employer is required to continue to pay exempt employees for their time away from work during the hurricane if the workplace is closed; provided the closure is less than a full workweek. However, the employer may require exempt employees to use available paid leave benefits.

When an employee is called up by the National Guard or Reserves to participate in the storm response, either before, during or after the storm, an employer must comply with the requirements of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), which prohibits discharging, denying initial employment, denying promotion, or denying any benefit of employment because of a person’s membership, performance of service, or obligation to perform service in uniformed service. Employees on USERRA leave may, at their option, use available paid leave benefits to be paid for their time away from work.

After the Storm

Where an employee cannot report to work due to transportation difficulties experienced as a result of the storm, the absence is considered an absence for personal reasons under the U.S. Department of Labor’s regulations. An employer does not have to pay a non-exempt employee for any work time missed as the result of transportation difficulties resulting from weather. An employer may make a deduction from an exempt employee’s salary for a full day absence for this reason or an employer may require the employee to use paid leave benefits for the full day absence for this reason. However, an employer cannot make a deduction from the exempt employee’s salary for any absence less than a full day.

If an employer allows remote work in the wake of the storm, non-exempt employees must still be compensated for all time worked remotely, and the employer should bear in mind it may have to rely on employees self-reporting their work hours. Exempt employees working remotely must still be paid their regular salary although an employer can require the employee to use paid leave benefits for any partial workdays.

Employers also have some flexibility if a storm delays the processing and delivery of wage payments to employees as Florida has no law governing the frequency of wage payments. However, if an employer has employees outside of Florida, the employer should take note of the laws of those other jurisdictions concerning frequency of wage payments to employees.

Employees affected by a hurricane may seek protected leave under the Family and Medical Leave Act (“FMLA”) for any serious health condition caused by the hurricane or where the employee must care for a child, spouse, or parent with a serious health condition. Even if the employee is not covered by federal, state, or local laws (such as Dade County’s family and medical leave ordinance, Ordinance Sections 11A-29 et seq.) that allow time off for injury or illness, employers should assess whether an employee may be eligible for leave under any of the employer’s policies or under a collective bargaining agreement. Ultimately, if the employer changes how it enforces its leave policies due to a hurricane, the employer should make sure any changes to enforcement are applied consistently to all employees and that the employer’s actions are always supported by legitimate, non-discriminatory reasons.

If a business is unable to reopen for an extended period of time in the aftermath of a storm, the effect on employee benefits such as paid leave and health insurance is rather complex, and must be decided on a factual basis pursuant to ERISA, the FMLA, COBRA, and other laws. Furthermore, the federal WARN Act imposes 60-day advance notice requirements on employers with 100 or more employees for certain plant closings and mass layoffs. Where a plant closing or mass layoff is the result of a natural disaster, the employer is required to give as much notice as is practicable. Employers outside of Florida may have to comply with other states’ “mini-WARN” laws.

The considerations set forth above are only examples of a few of the many legal issues that could arise and result in potential legal liability on the part of an employer in the face of a hurricane. Additional issues may arise under the Americans with Disabilities Act, the Occupational Safety and Health Act, the National Labor Relations Act, and unemployment laws, to name a few. Employers should consult with their employment law counsel to ensure compliance with best practices and to limit legal exposure.

The Lowndes firm hopes everyone stays safe this hurricane season, and we stand ready to help employers weather hurricane season and beyond.


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Rachel

Rachel D. Gebaide is a member of the firm’s Executive Committee and chair of the Labor and Employment Law Group. She is an experienced employment litigator and adviser, counseling companies in the management of their human resources issues.


Rachel regularly represents employers in federal and state courts and before administrative agencies in defending against claims involving allegations of employment discrimination and violations of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and other employment laws. She also defends discrimination claims arising under the Fair Housing Act.  

In addition to her litigation practice, Rachel drafts and reviews employee handbooks, employment agreements, non-competition agreements, separation agreements, and other personnel documents. She regularly advises clients regarding workplace issues and compliance with the FMLA, FLSA, WARN Act, the Affordable Care Act, and other employment laws. Rachel also has extensive experience in conducting independent investigations. 

A frequent speaker, Rachel often writes articles on developing issues in labor and employment law for client-focused publications, legal industry news outlets, and the firm’s employment law blog

Rachel is a member of the Labor and Employment Law Sections of the American Bar Association and the Federal Bar Association. She is also a member of the Orange County Bar Association, having served as Chair of the Labor and Employment Law Committee. Rachel is active in the Litigation and Employment Law Group of Meritas, a global alliance of independent law firms. 

She also serves as Executive Vice President of Congregation Ohev Shalom and Vice President, Legal of TOP Jewish Foundation. 

Morey

A Florida Supreme Court Certified Circuit Civil Mediator, Morey Raiskin works in the firm’s Labor & Employment Group.


Over the past 38 years, Morey has represented management of both large and small employers. He has successfully litigated cases in state and federal courts and represented clients in administrative proceedings involving the EEOC, DOL and FCHR. Morey also serves as an advisor to his clients, counseling them on virtually any workplace issue they may confront.

Morey develops non-compete and employment agreements, personnel policies, employment application forms, employee handbooks, and counsels clients on wage and hour, discrimination, WARN Act planning and union avoidance strategies. He litigates these same issues in state and federal courts or in administrative proceedings before the EEOC, U.S. Department of Labor or the Florida Commission on Human Relations.

Morey began practicing law in Las Vegas, Nevada, before moving to Orlando in 1984. In 1986, he accepted an in-house opportunity with a diversified publisher, Harcourt Brace Jovanovich, eventually becoming Lead Labor and Employment Counsel and Administrative Vice President of its wholly-owned subsidiary, Sea World. In 1990, Morey returned to private practice and has served in a myriad of roles, including as a shareholder and chair of the Labor and Employment Law Group at Lowndes from 1990—2012.


Abood

Abood Shebib is an attorney in the firm’s Labor and Employment Group. He primarily focuses his practice on representing employers in complex employment litigation matters, including matters involving the Fair Labor Standards Act (FLSA); Title VII of the Civil Rights Act of 1964; the Fair Credit Reporting Act (FCRA); the Americans with Disabilities Act (ADA); the Age Discrimination in Employment Act (ADEA); and the Family Medical Leave Act (FMLA). He works with a wide range of clients, from individuals and small businesses to Fortune 100 companies.

Abood has extensive experience handling all aspects of the employment litigation process in both state and federal court. In addition to preparing dispositive motions, including motions for summary judgment and motions to dismiss, taking and defending depositions, and arguing motions in court, he regularly conducts investigations and responds to charges of discrimination before the Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations (FCHR). Abood counsels clients on litigation avoidance strategies, as well as assisting with settlements and releases and the termination and discipline of employees.

With a background in commercial litigation, Abood also has experience advising clients on matters involving business litigation, trademark litigation and contract disputes in federal and state court.

Abood earned his undergraduate degree in Biology from the University of Arkansas and his law degree cum laude from the University of Florida Levin College of Law. While in law school, he served as a judicial intern to Magistrate Judge Monte C. Richardson of the U.S. District Court for the Middle District of Florida, Jacksonville Division and as a certified legal intern in the Office of the Public Defender for the Eighth Judicial Circuit. He was also an intern in the Office of the Vice President and General Counsel for the University of Florida. Shortly after graduating from law school, Abood interned with Judge James S. Moody in the U.S. District Court for the Middle District of Florida, Tampa Division. 

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