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Be compliant with time-keeping and compassionate with personal circumstances
Workers may be understandably beleaguered during and after a hurricane when Fair Labor Standards Act (FLSA) compliance is hardly top of mind. Evacuating and then returning to find damage to homes or businesses, nonexempt employees might overlook tracking hours they may have worked remotely, away from their employers during and after the storm. HR needs to get them back on track with the recording of hours worked.
The key compliance risk from an employer's perspective is nonexempt workers' failure to record their time, said Hal Shillingstad, an attorney with Ogletree Deakins in Minneapolis. "The FLSA's recording requirements cannot be ignored simply because of an extreme circumstance like a hurricane or natural disaster," he said.
"Sometimes employees won't have access to electronic time-keeping systems or a time sheet" during or just after a natural disaster, noted Suzanne Bogdan, an attorney in the Fort Lauderdale, Fla., office of Fisher Phillips. "So, the employer will ask that the employee e-mail a designated person the daily and weekly hours."
Nonexempt employees might know that they worked some during an evacuation once they reached a secure location, but not know the specific amount of time worked.
"Modern technology can help," said Mark Neuberger, an attorney with Foley & Lardner in Miami. "Everyone leaves a lot of footprints, such as e-mail and cell phone timestamps, that may help the parties piece together the amount of time that was actually worked."
An employer would be wise to prepare a form for an employee to fill out when a worker didn't record time worked during an emergency evacuation, according to Jim Swartz, an attorney with Polsinelli in Atlanta. The form should include "a representation that the estimate is the employee's best recollection of the amount of time worked, and that the employee is aware of no other compensable time other than the amount provided on the form."
Neuberger noted that under the FLSA, nonexempt worktime must be recorded on a weekly basis. "There is no specific requirement to record time daily," though some states have different requirements and the most restrictive rules must be followed, he said.
"But to be safe, employers can tell their nonexempt employees to carefully record any time spent working and provide the employer with a record of time worked in writing" on the day the work is performed, Swartz said. "E-mail works well and text messaging can be used in a pinch."
Something employees won't forget about is their paycheck, and if that is in paper form, the unavailability of a paycheck due to an office closure could be a real hardship, particularly for someone who depends on regular payments.
"Some employers do still pay by check because some states, like Florida, do not permit employers to require employees to use direct deposit," Bogdan noted. "The possible delay of getting a hard check is a good reason to encourage employees to use direct deposit or other similar electronic payment methods."
But some areas are also out of power, "thereby frustrating this method as well," noted Tim Garrett, an attorney with Bass, Berry & Sims in Nashville, Tenn.
Many states have specific requirements concerning the frequency with which employees must be paid, said Wendy Stryker, an attorney with Frankfurt Kurnit Klein & Selz in New York City. "In Florida, most employees must be paid at least monthly. South Carolina does not have any requirements with respect to frequency of paychecks. If companies cannot meet these requirements they should keep a careful record of the reason for the delay and inform employees in writing about the problem," she stated.
"If disasters prevent the work hours from being recorded or pay from being distributed when they should, the solution is to fix things and make them right as soon as practicable," Neuberger said.
"For those few who have not opted for electronic deposit and receive their checks by hand delivery or personal pickup at their place of employment, the employer could have their payroll vendor send checks to employees' homes instead of having them delivered to the company location," Shillingstad noted. "In addition, for those employers who do not have a payroll vendor, the employer itself could mail checks to employees' homes as soon as practicable or possibly set up a pick-up station at a safe location not impacted by the event."
Comprehensive Disaster Plan
"In Florida, it's hurricanes; in California, it's fires; and earthquakes and up north it's snowstorms," Neuberger said, adding, "All employers, regardless of where they are located, need to have a comprehensive disaster plan in place before any disaster strikes," among other preparations.
He said that any plan should anticipate how employees' hours will be tracked, how the employer will contact the employees, who is working and where, and how employees are going to be paid.
"In my opinion, as a former HR manager, being cheap and inconsiderate to employees when a disaster strikes is penny wise and pound foolish. It's a great way to generate negative workforce morale and unanswered calls the next time you need their help," he said.
"There may be a continuing need for some employees to continue to work remotely or to take care of family members who have been injured," Garrett noted.
"Employers also will be challenged to excuse certain absences or to allow continued remote work due to personal circumstances caused by the storm," he added. Garrett recommended that employers "remain focused on relationship issues with [the] workforce. This often is an opportunity for employers to show with their actions that the words 'we value our employees' ring true."
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