Personnel and Storm Prep

Disaster Preparedness 1

Prepare your people before disaster strikes.

By Adam S. Chotiner 

A hurricane is swirling in the Atlantic or Gulf of Mexico. A wildfire is raging in the West. A Nor’easter is bearing down with snow, ice and gale-force winds. For a restaurant owner or manager, these are not the moments to start preparing your people, organization or management for a natural disaster.

That moment comes when skies are clear and calm, and you have time to draft a restaurant business continuity plan that outlines expectations and responsibilities in order to minimize downtime and ensure the business and its people get back up and running smoothly. Battening down the hatches is the most common defense when a natural disaster is threatening. But in matters of labor, employment and personnel, preparing your people and processes requires time and thought – and certainly not while under the duress of a storm warning.

If you’re in the food-processing, distribution, restaurant or retail sector, addressing these concepts now can help prepare for the fallout of a natural disaster.

- Payroll, Overtime and Non-exempt Employees

For nonexempt or hourly employees entitled to overtime, such as busboys or shift managers, the saying, “time worked equals time paid” applies. If the business is closed, the employer is not obligated to pay those employees. An exception is made for those under a “fluctuating workweek agreement,” which involves a minimum salary for up to 40 hours with “half-time” for overtime hours (instead of the typical time-and-one-half); such employees are generally required to be paid the minimum salary for any workweek in which they perform any work.

- Payroll and Exempt Employees

If you are fortunate that your kitchen was relatively unharmed and the business is closed for less than a full week due to a disaster, salaried-exempt employees receive their full week’s salary if they performed any work during that week. In other words, salary-exempt employees (such as managers) must be paid their full salary for any workweek in which they perform any work. However, if the business is open, but a salary-exempt employee chooses not to work, then the employee does not need to be paid for any day on which the business is open and the employee performs no work. In that instance, the employee can use accrued PTO to make up any shortfall.

- Termination and Unemployment

Disaster Preparedness 2So long as the restaurant, diner or other establishment is closed, employees are not required to report to work. If employees are informed that the restaurant is reopening and they are expressly directed to report to work, and if they refuse to come to work without good cause and you fire them, then you could potentially avoid liability for unemployment benefits. In Florida, even if the governor has called for a state of emergency or issued an evacuation order, courts have found that employees in that state can be terminated for refusing to come to work in those circumstances. However, if the workplace itself is deemed unsafe for work, then employees can refuse to work.

- Federal implications

A host of acts and agencies come into play with employer/employee disaster response. Consider the Family and Medical Leave Act (FMLA), which applies only to companies with 50 or more employees. For example, if the chef suffered an injury or the hostess has a family member who suffers from a serious health condition where medication must be refrigerated or equipment must be powered, and they reside in an area left powerless and therefore require time off to see to this, then this could trigger an FMLA issue. Additionally, for those employees who are in the National Guard, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the jobs of National Guard personnel called up in the event of a natural disaster.

- Put It In Writing

Employee handbooks should incorporate pre- and post-natural disaster or catastrophic event policies. These policies should outline under what predictable circumstances how, when or whether the business will re-open. For example, will the restaurant be open through a hurricane watch, but close upon a hurricane warning? The policies also should define how the workforce will be notified of closing and re-opening.

Will they be notified by text, phone call, email or social media? If by social media, then what is the team’s obligation to check or check-in? The policies should also explain how employees can inform the employer of their status or health after the event. The policies also may include job specific assignments, like furniture storage, inventory and alcohol management, or physical protection, like shutters, as well as how or when to check about associated responsibilities upon reopening.

Rules, regulations and documented guidance notwithstanding, employers should consider team morale when making or enforcing policies surrounding natural disaster recovery. Just because payment to non-exempt employees is not required, doing so could boost morale, especially if salaried-exempt employees are being paid. If the restaurant works with a payroll or HR provider or employment law attorney, review your responsibilities now, while skies are clear and calm. Storm season is no time to plan your response.

 

Disaster Preparedness Adam S. Chotiner

 

Adam S. Chotiner is a Shareholder with Shapiro, Blasi, Wasserman & Hermann, P.A. one of the largest independent full-service litigation and transactional law firms in South Florida. He is Board Certified in Labor and Employment Law by The Florida Bar and oversees the firm’s Labor and Employment Law practice group. He may be reached at (561) 477-7800 or achotiner@sbwh.law.

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