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Hurricane-Related FAQs for Florida Employers

September 13, 2017 Posted in Practical Suggestions

Compensation

Do I have to pay employees if they miss a few days of work due to evacuating the area?

Non-exempt hourly employees: No. If an hourly non-exempt employee does not work, neither the FLSA nor the Florida Minimum Wage Act require the employer to pay the employee.


Exempt employees or salaried non-exempt employees: Yes. If salaried employees work any part of a workweek, they must be paid for the full workweek, regardless of the quality or quantity of their work.

Do I have to pay nonexempt employees who stay onsite during a hurricane for time spent sleeping?

Probably yes, but with some qualifications.

This answer hinges on whether the employees are sleeping onsite because they are required to be at work. If they are there for their own comfort and safety, then the time should not be compensable.

Section 785.22 of Title 29 of the Code of Federal Regulations provides that when a nonexempt employee is required to be on duty for 24 hours or more, the employer and employee can agree to exclude regularly-scheduled sleep periods of not more than 8 hours from hours worked, as long as the employee can enjoy an uninterrupted night’s sleep and the employer provides adequate sleeping quarters. The employee must be able to get at least 5 hours of sleep.

The employer can declare up to eight hours of sleeping time non-compensable it it can meet all three of these requirements:

  • Adequate sleeping quarters
  • At least five hours of uninterrupted sleep
  • Express or implied consent from the employee

But does this apply to a hurricane situation, which is not regularly-scheduled and may not allow for 5 hours of uninterrupted sleep (and where the employer may not be able to provide adequate sleeping quarters)? The DOL will likely have concerns about an employer taking an aggressive position on those questions.

Once this is over, do I need to pay non-exempt employees for picking up coworkers who no longer have transportation and bringing them to work?

If an hourly non-exempt employee is required by the employer to pick up coworkers who do not have transportation, the employee is entitled to be paid from the point at which he picks up the first of those coworkers. By comparison, the employee who is being picked up generally does not have to be paid until he or she reaches work, assuming the pickup is for the employee’s convenience and he or she does not do any productive work until reaching the employer’s place of business. Likewise, if the driver is not required by the employer to pick up the coworkers, but merely does so due to a voluntary agreement with the coworkers, then the driver would not be entitled to compensation.

Discipline

Can I terminate employees who fail to show up for work?

Private-sector employees who are not covered by a collective-bargaining agreement or a contract for a definite period are employees-at-will. They may be discharged for failing to report to work for a scheduled shift or for failing to report for emergency duty when required to do so by the employer. The employer should always consider carefully whether this type of decision, even if legally permissible, makes sense in light of practical, ethical, and public-relations considerations.

Accommodation

If I have a disabled employee, is that employee entitled to any hurricane-related accommodations?

Nothing in the ADA directly identifies a hurricane as something that an employer must accommodate. But an employer must evaluate each request for accommodation individually, and the counter-proposition is also true: nothing allows an employer to reject a request for accommodation just because it is triggered by hurricane-related circumstances. Thus, if certain environmental conditions in an employer’s workplace might have an adverse interaction with an employee’s disability, the employer has a duty to engage in an interactive discussion about that interaction to the extent that it (1) limits the employee’s ability to perform the essential functions of the job, or (2) interferes with the employee’s ability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

Leave

If we closed our business during the hurricane and no employees were working, does that still count as a leave day for those employees who were on FMLA leave?

It depends. If the employee was taking leave in increments longer than a week, and employees are sent home for a full workweek, that workweek should not be counted. According to the DOL, if an employer temporarily stops business activity and employees are not expected to report for work for one or more weeks (e.g., a school that closes two weeks for the winter holiday, or a plant that closes for a week for repairs), the days the employer’s business activities have stopped do not count against the worker’s FMLA leave. But if the employer’s operations are suspended for less than a week, then the DOL’s language suggests that the week should still count against the employee’s leave entitlement.

If the employee was taking leave in increments smaller than a week, then the question of whether to count the days that the employer is shut down would depend on whether the employee would normally have been scheduled to work on those days.

National Guard Service

Are employees who are called to National Guard duty entitled to job protection?

Yes.

The federal Uniformed Services Employment and Reemployment Rights Act does not protect state callups of National Guard personnel for disaster-relief duty.

But Florida law does contain a broad protection for service in the National Guard. According to Florida Statute § 250.481:
Any person who seeks or holds an employment position may not be denied employment or retention in employment, or any promotion or advantage of employment, because of any obligation as a member of a reserve component of the Armed Forces.

Charitable Contributions

Can our company set up a drive to solicit contributions from company employees for hurricane relief without endangering our no-solicitation rule?

Private employers who enforce neutral non-solicitation/non-distribution rules can generally prevent union access to private property. But if this rule is selectively enforced, a union may claim that its organizers should be allowed access to the employer’s property to conduct an organizing campaign. Courts have recognized a beneficent acts exception that permits an employer to designate one or two charities who are allowed to solicit their workforce for donations.

Also, when drives are directly sponsored by the company as part of its goodwill efforts and the solicitations are coming directly from management, those efforts would be on a different footing than when the company is merely permitting outside charities to come in and solicit its employees. They would not be subject to the same restrictions. The caveat to this, though, is that employer-sponsored drives may risk seeming coercive if not presented properly. The employer must get the phrasing right so that employees cannot later argue that they were coerced to “kick back” part of their wages.

So, if an employer wants to set up a drive for charitable donations, it should consider the following guidelines:

  • Focus on one or two charities
  • Consider sponsoring the drive directly
  • Have management make clear that contributions, while welcomed, are entirely voluntary
  • If the drive will not be company-sponsored, make sure that it is one of only a small number of permitted charity drives so that it can fit within the beneficent acts exception.
  • Make sure that enforcement of the no-solicit policy has otherwise been uniformly vigilant.

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