Hurricanes Harvey, Irma and Jose have hit, are hitting, and will soon be hitting the United States, and first and foremost, employers need to make sure their employees, customers, and guests are safe from the storm.
Natural disasters such as hurricanes, earthquakes and tornadoes have posed unique human resource (HR) challenges from wage-hour to FMLA leave and the WARN Act. The best protection is to have a plan in place in advance to ensure your employees are paid and well taken care of during a difficult time.
Although no one can ever be fully prepared for such natural disasters, it is important to be aware of the federal and state laws that address these situations. Our guidance can be used by employers in navigating through the legal and business implications created by events such as Hurricanes Harvey, Irma, and Jose. In addition, the information may be applicable to other crises and disasters, such as fires, flu epidemics and workplace violence.
Frequently Asked Questions
If a work site is closed because of the weather or cannot reopen because of damage and/or loss of utilities, am I required to pay affected employees?
The Fair Labor Standards Act requires employers to pay their non-exempt employees only for hours that the employees have actually worked. Therefore, an employer is not required to pay nonexempt employees if it is unable to provide work to those employees due to a natural disaster.
An exception to this general rule exists when there are employees who receive fixed salaries for fluctuating workweeks. These are nonexempt employees who have agreed to work a specified number of hours for a specified salary. An employer must pay these employees their full weekly salary for any week in which any work was performed.
For exempt employees, an employer will be required to pay the employee’s full salary if the work site is closed or unable to reopen due to inclement weather or other disasters for less than a full workweek. However, an employer may require exempt employees to use available leave for this time.
Is it lawful to dock the salaries of exempt employees who do not return to work when needed after an emergency or disaster?
The U.S. Department of Labor considers an absence caused by transportation difficulties experienced during weather emergencies, if the employer is open for business, as an absence for personal reasons. Under this circumstance, an employer may place an exempt employee on leave without pay (or require the employee to use accrued vacation time) for the full day that he or she fails to report to work.
If an employee is absent for one or more full days for personal reasons, the employee’s salaried status will not be affected if deductions are made from a salary for such absences. However, a deduction from salary for less than a full-day’s absence is not permitted.
We recommend caution, however, in docking salaried employees’ pay and suggest that you first consult with legal counsel. Moreover, many employers instead require employees to “make up” lost time after they return to work, which is permissible for exempt employees. This practice is not allowed for nonexempt employees, who must be paid overtime for all hours worked over 40 in a workweek.
What other wage and hour pitfalls should employers be aware of following a hurricane or other natural disaster?
On-call time: An employee who is required to remain “on call” at the employer’s premises or close by may be working while “on call,” and the employer may be required to pay that employee for his “on call” time. For example, maintenance workers who remain on the premises during a storm to deal with emergency repairs must be compensated — even if they perform no work — if they are not free to leave at any time.
Waiting time: If an employee is required to wait, that time is compensable. For example, if employees are required to be at work to wait for the power to restart, that is considered time worked.
Volunteer time: Employees of private not-for-profit organizations are not volunteers if they perform the same services that they are regularly employed to perform. They must be compensated for those services. Employers should generally be cautious about having employees “volunteer” to assist the employer during an emergency if those duties benefit the company and are regularly performed by employees.
Can employees affected by a hurricane seek protected leave under the Family and Medical Leave Act (FMLA)?
Yes, employees affected by a natural disaster are entitled to leave under the FMLA for a serious health condition caused by the disaster. Additionally, employees affected by a natural disaster who must care for a child, spouse or parent with a serious health condition may also be entitled to leave under the FMLA.
Some examples of storm-related issues might include absences caused by an employee’s need to care for a family member who requires refrigerated medicine or medical equipment not operating because of a power outage.
If a work site or business is damaged and will not reopen, what notice must be provided to affected employees?
The Worker Adjustment and Retraining Notification (WARN) Act, a federal law, imposes notice requirements on employers with 100 or more employees for certain plant closings and/or mass layoffs. However, an exception exists where the closing or layoff is a direct result of a natural disaster.
Nonetheless, the employer is required to give as much notice as is practicable. If an employer gives less than 60 days’ notice, the employer must prove that the conditions for the exception have been met. If such a decision is contemplated, it is advisable to consult with legal counsel about the possible notice requirements to ensure compliance with the WARN Act.
Our HR department has been disrupted, and it may be weeks before things are back to normal. Will the government extend any of the customary deadlines governing employer payment for benefits, pension contributions and other subjects during this recovery effort?
During previous natural disasters, particularly Hurricane Sandy and Katrina, many governmental agencies and entities extended the deadlines for certain reports and paperwork. Therefore, it is expected that with future natural disasters, the government will provide some deadline extensions, but, as with every natural disaster, the government’s response will vary.
Regardless of what extensions may be granted, employers should be fully aware of state laws and implement any policies or plans necessary to minimally interrupt the payment of wages to their employees.
Employees from other states want to donate leave to affected employees. Is this lawful?
Yes. Employers can allow employees to donate leave to a leave bank and then award the donated leave to the affected employees.
Disaster Preparation Checklist
Natural disasters can pose a myriad of HR challenges for employers. While many employers are working around the clock on recovery efforts, other employers find themselves unable to function for extended periods of time because of damage or loss of utilities. The economic effects of a natural disaster will have long-term consequences on businesses in the affected region.
]]>With respect to consumers, in the majority of states, passing credit card swipe fees along in a customer surcharge became lawful in 2013. Only ten states prohibit it: California, Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, Oklahoma, Texas and Utah. If a restaurant decides to add a surcharge to the bill to recoup the credit card swipe fee, it is important that the fee not exceed the percentage charged by the credit card company, the fee is posted clearly on the guest check prior to paying the bill, and it cannot be used for debit card purchases.
With respect to employees, the credit card swipe fee may only be passed along to servers and applied to the tipped portion of the bill. For example, if a bill is $100 plus a $20 tip, the swipe fee on the $100 (e.g., 3 percent or $3) must be paid by the restaurant. However, when paying out the server, you can allocate $19.40 since you can charge the server 3 percent or 60 cents to recover the swipe fee on the gratuity. As with guests, an employer may not charge the server more than credit card swipe fee, and the reduced amount in tips cannot cause the employee to earn less than the minimum wage. And again, you must always check state and local law as some states prohibit deductions from credit card tips for processing fees, such as California, Colorado, Nevada, New Mexico, Oregon, and Washington, among others.
But even if legal, is it practical or good business sense to pass along processing fees to employees and customers? Is it industry practice in your market to pass along these fees, or do you risk angering an important stakeholder in your profit margin – your employees and customers? Surcharges could be perceived as owners taking more money out of the pockets of employees and customers and companies could risk losing the business to another restaurant down the street. Unless the practice becomes an industry standard, it is likely that adding a surcharge or deducting the swipe fee from tips could do more harm than good.
Originally published on Wednesday, June 11, 2014
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Title III of the ADA requires hospitality operators to maintain facilities that are accessible to individuals with disabilities, and make their goods and services available to and usable by individuals with disabilities on an equal basis with members of the general public. This includes making reasonable modifications to policies, practices, and procedures when necessary to serve customers/guests with disabilities.
Lesley University had required all students living on campus to participate in, and pay for, its meal service plan, even if some students with severe allergies could not eat the food available through the plan without risk of illness. Several students complained that the school’s food services were inadequate for their needs, and alleged that the university had violated the ADA by neither addressing the needs of students with food allergies nor ensuring them an equivalent dining experience.
The DOJ commenced an investigation, and charged that the university violated the ADA by failing to accommodate the special food needs of these students, reasoning that they could not fully and equally enjoy the university’s dining services. On Dec. 21, 2012, the DOJ announced its settlement with Lesley University, which required the university to provide allergen-free options in its food lines, and develop individualized meal plans for students with food allergies.
While the DOJ settlement agreement refers only to universities and students, it has now, for the first time, identified all severe food allergies as disabilities, which could trigger reasonable accommodation requirements of the ADA. This settlement makes it possible that when this issue is litigated, the courts will broadly apply the terms of this agreement to all employers that serve food in the workplace. As a result, the settlement is likely to have wide-ranging implications for all businesses that serve food, either as a primary or secondary practice. Thus, hospitality operators should evaluate their practices for offering and providing accommodations for food allergies to minimize any potential exposure to disability discrimination charges under the ADA.
While there may not be a “one size fits all” solution to this issue, hospitality companies can take prudent steps to ensure that guests with allergies have the ability to fully and equally enjoy the dining services and the social benefits that accompany such services (see list below).
Depending on the size and resources of your company, many strategies to provide alternatives may not be practical or feasible. However, to ensure compliance with the ADA and avoid a civil lawsuit or DOJ investigation, hospitality operators that serve food to the public must be proactive in at least considering, if not implementing, some of the allergen protective measures.
Tips to Accommodate Food Allergies
There are many practical strategies that hospitality operators can implement to reduce Americans with Disabilities Act exposure regarding allergens:
Co-Authored By: Jordan Schwartz
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