Hurricane Preparedness Speech - Charley, Frances & Jeanne
Thomas J. Leek, Esq
Cobb & Cole
(386) 323-9210
July 22, 2005
I. Employee Pay Issues:
A. Destruction of the Exempt Status of Employees
1. The story of Malcom Pirnie, Inc.
a. Employees appropriately classified as exempt under FLSA, as conceded by the Department of Labor.
b. Thus, the issue is whether the exempt employees lost the exemption.
c. MP Policy at Issue - Employees who miss work due to bad weather, automobile accidents, or medical reasons are required to make up their time or charge it to an accrued time or “absence without pay” account.
d. 24 employees received deductions pursuant to the policy in the amount of $3,268.78 for an 18 month period.
e. The District Court found in favor of MP determining that the deductions were inadvertent. The Second District Court of Appeals overruled the District Court.
f. The Second District Court of Appeals awarded the employees $515,455.50 in damages, liquidated damages and prejudgment interest.
2. Must Employers pay exempt employees for the days the business is closed due to inclement weather - YES, and the employer may not require the employee to use Paid Time Off/paid leave.
B. Hourly Employees
1. Must Employers pay hourly employees for the days the business is closed due to inclement weather - NO, and the employer may require the employee to use Paid Time Off/paid leave pursuant to a company policy.
2. What about hourly employees who are unable to leave the facility during inclement weather causing the employee to remain at the facility beyond 40 hours? - YES, the employee must be paid if they continue to work during this time.
3. What about the hourly employee who arrives at work only to find out the employer is closed due to inclement weather? NO, in Florida the employee need not be paid if he/she performs no work.
II. Strategies for Poor Weather - Have a Hurricane Plan
A. Notice:
1. Define which weather conditions are bad enough to warrant an employee’s absence from work, e.g., hurricane with anticipated landfall within Volusia County within 12 hours from the time employee is to report to work.
2. Phone relays
3. Radio and Television Announcements
4. Company website
B. Prehurricane Planning - Having a Written Plan
1. A time line of tasks to be accomplished 72 hours prior to the storm’s anticipated arrival. Have each department suggest the necessary tasks to secure their area of responsibility.
2. Pre-established employer closure time.
3. Put together an Emergency Team and establish their functions.
4. Back up your systems, and baton down the hatches.
5. Take pictures before the storm for insurance reasons.
C. Posthurricane Procedures
1. Refer employees to EAP
2. Decide how the company will handle inquiries about assistance to displaced employees.
3. Debris clean-up plan
III. Negligent Failure to Plan - New Legal Concept
A. Standard - An employer may be negligent for failure to take reasonable steps to eliminate or diminish known or reasonably foreseeable risks that could cause harm.
B. Known or Reasonably foreseeable risks - Hurricanes?
C. Reasonable steps to eliminate or diminish known or reasonably foreseeable risks - Hurricane Preparedness Plan v. No steps to eliminate or diminish
D. Negligence for the failure to take reasonable steps to eliminate or diminish known or reasonably foreseeable risks that could cause harm - This is the result.
IV. Conclusion - Hurricane preparedness is about getting back to business, avoiding the legal pitfalls of shutdowns and taking care of the people who for you.