In the wake of Hurricane Ian, employers are reminded yet again that they should be prepared for any natural disaster as well as the more run of the mill inclement weather. Employers should review their policies now and think about how those policies might need to be amended with the workplace changes that have taken place since the beginning of the COVID-19 pandemic. Any good policy will address, at a minimum, employee safety, a communications plan, and compensation.

Safety

While employers have an obvious interest in keeping their business running, no employer wants to see an employee injured – or worse – because the employee felt obligated to come to work in unsafe conditions. Both from a productivity and culture standpoint, it is not usually in the employer’s best interest to take a hard line with employees who refuse to travel on dangerous roads, or when there are severe service disruptions on public transportation. In addition, some employees may be caretakers of children who will be affected by school or daycare closings. These factors and more must be considered when preparing, communicating and enforcing any natural disaster or inclement weather policy.

Communications Plan

Well before a storm or natural disaster strikes, employers should have in place a plan for communicating with employees, and that plan should consider the possibility of prolonged power outages. Employers should set up an employee notification system, which uses voice, email, text or other technology, in the event of a company closure, or provide a recorded message for employees to access during weather or other emergencies. Employees should be expected to contact their supervisor or another company representative if the office is open but an employee cannot make it to work during inclement weather, and that expectation should be communicated in writing.

Compensation

In a perfect world, every business could afford to continue paying employees their full wages even if the company must close due to hurricanes, blizzards, floods, wildfires or some other natural disaster. The world is not perfect, however, and employers should be aware of their rights and obligations when it comes to paying employees during a weather event.

Under the federal Fair Labor Standards Act (FLSA) employers are required to pay nonexempt employees only for actual hours worked. Employers can require nonexempt employees to use any accrued paid time off or take an unpaid day in the event that they cannot come to work during a weather or other event. If a nonexempt employee has no remaining paid time off, the employer is not required to pay the employee for days that the employee did not work. New Jersey (but not Pennsylvania or Delaware) has adopted a reporting for work law that requires employers to pay employees for at least one (1) hour at their applicable wage rate if they show up or report for duty at the request of their employer, except when the employer has made available to the employee the minimum number of work hours agreed upon by the employer and employee prior to the employee beginning work on the day in question.

By contrast, except in limited circumstances, an employer must pay an exempt employee when he or she works any portion of a workweek, including situations of inclement weather and natural disaster. Employers can require exempt employees to use any accrued paid time off when the office is closed, but, if an exempt employee has no remaining paid time off, the employer must pay the exempt employee for a partial workweek closing. The only instances in which an employer is permitted to not pay exempt employees because of inclement weather or a natural disaster are: when a business closes for an entire week and the employer is certain that the exempt employee performed no work during that week; and when the business remains open during inclement weather and an exempt employee chooses to take the entire day off for personal reasons.

Of course, as we have learned over the last several years, many exempt (and nonexempt) employees can work effectively from home. To the extent they can, therefore, employers should plan for inclement weather or natural disasters that may affect the ability of some employees to come to the office and communicate expectations around, for example, taking laptops home to make sure employees can continue to work even when roads are not passable. Employers still should keep in mind, however, other issues that can affect an employee’s ability to work remotely, such as childcare challenges and power or internet outages.

Additional Issues to Keep in Mind

FMLA: Employers must remember their obligations under the Family and Medical Leave Act (FMLA) to provide leave to those qualifying employees who suffer a serious health condition during any natural disaster or inclement weather. This FMLA requirement also may extend to the employee’s need to care for a spouse, parent, or child suffering a serious health condition or medical emergency during that time. In addition to the federal FMLA, some states have unique family leave requirements that need to be followed as well.

Military Leave: Employees may be members of the National Guard or volunteer responders and may be called up for duty during a natural disaster. Job protections are in place for these employees, and some state laws may be implicated to address unique situations.

If you have questions about a current natural disaster/inclement weather policy, or you are thinking about adopting one in your workplace, you should consult with experienced human resources professionals and/or labor and employment counsel. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney are available for additional consultation.

Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers' Association
800-662-6238

It is Time to Update Your Employee Handbook. (No, That Was Not a Question) — EXPERT GUIDANCE

Let's be honest - no one gets excited about spending time or money working on their employee handbook. Many employers think that their ten-year-old handbook is fine, and they take the approach of "if it ain't broke, don't fix it." Right? Wrong. I can almost promise you that something in your handbook is broken - and you just don't know it - yet.

Employment laws continue to change and evolve. Your organization continues to change and evolve. If you have not updated your handbook to meet those changes, then you may be in peril.

Having overhauled a dozen handbooks just since the pandemic began, here are my top 10 issues that I commonly see with employee handbooks that can become problems if not addressed:

Yes, I know - employee handbooks are not exciting. But an updated, accurate, and legally compliant handbook provides an important opportunity to communicate with employees and avoid misunderstandings and disputes, as well as protecting the organization if a dispute arises. But having a legally deficient handbook can, in some instances, be worse than not having one at all. Governmental agencies are out in force, and employment lawsuits are on the rise. So, if your employee handbook predates the pandemic, then it's probably time for a checkup.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Silenced No More Laws—Employers Should Know What Not To Say — EXPERT GUIDANCE(Sep. 16, 2022)

In the wake of the #MeToo movement, many West Coast states passed laws that encouraged employees to freely discuss workplace sexual harassment and forbid employers from stopping this speech. These laws typically focus on confidentiality, non-disparagement, separation, settlement, and arbitration agreements. But some laws are so broad that they may lead to unintended consequences, and worse yet, result in significant monetary penalties and damages. The trend that began with Washington state's Silenced No More law has now spread to 14 states, with two more states considering bills. Congress also joined the trend by passing bi-partisan legislation limiting arbitration agreements. Against this backdrop, employers must now know what not to say.

Washington state passed its Silenced No More Act in 2018. See Lane Powell's previous legal updates found here and here. In 2019, California followed suit. See our previous legal update here. Later that year, Oregon passed its Workplace Fairness law. Legislatures in Hawaii, Illinois, Louisiana, Maryland, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Vermont, and Virginia have also passed legislation. On a national level, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This law amended the Federal Arbitration Act to void arbitration agreements and joint action waivers that purport to apply to claims of sexual assault and harassment. See our legal update regarding this topic here. The broad sweep of these laws will no doubt create compliance challenges, especially for multi-state employers. Indeed, state laws are not uniform in their prohibitions, coverage, and exceptions, and some impose steep penalties for noncompliance.

For example, Washington's law applies to agreements that limit disclosure of facts that an employee "reasonably believes constitute illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault, or that is recognized as against a clear mandate of public policy." Washington's law also applies to current, former, and prospective employees and independent contractors. Washington's law may also have implications on employers' ability to require confidentiality during workplace investigations.

Oregon's law applies to former employees and limits mediators who are mediating harassment or discrimination claims. California's law originally applied to claims for sexual discrimination, assault, and harassment, but was expanded to apply to claims for any kind of discrimination or harassment in employment or housing.

Some of the state laws also mandate magic language be used in agreements and policies. California's law requires that waivers inform the employee of their right to seek legal guidance, and requires employers to give employees at least five business days to consider the agreement before signing. Oregon's law requires that employers adopt and distribute a written policy informing employees of the Workplace Fairness Act's requirements, and provide the policy to newly hired employees and anyone who files a complaint.

Exceptions to these laws also vary across states. California, Oregon, and Washington's laws contain exceptions for trade secrets and proprietary business information. Both Washington and California's laws permit employers to maintain confidentiality regarding the settlement amount. But Oregon's law only permits such a prohibition when requested by the aggrieved employee and only if the agreement contains a seven day revocation period and does not involve a public employee that has engaged in the discriminatory, harassing, or retaliatory conduct. California's law similarly permits confidentiality provisions that protect identifying information at the request of a claimant, as long as the other party is not a government agency or public official.

Non-compliance costs and penalties also vary. Washington and Oregon's laws impose monetary sanctions, but others do not. Washington's 2022 amendment to its Silenced No More Act imposes penalties equal to "actual or statutory damages of $10,000, whichever is more," and reasonable attorneys' fees and costs. Oregon's law imposes a $5,000 penalty, but permits courts to award additional damages, including punitive damages. California permits an aggrieved party to make a motion for fees, including under any contractual fee provision contained in the challenged agreement.

What Should Employers Do Now?

• Review your standard employment agreements to ensure they are compliant with requirements in the states where your employees are working;

• Ensure your employee handbook policies comply with these new laws;

• Review separation and settlement agreements to ensure compliance with applicable state and federal laws limiting confidentiality;

• Evaluate your arbitration agreement in light of the federal exceptions for sexual harassment and assault claims; and

• Consult legal counsel with any questions or uncertainties, especially when terminating employment and offering a separation agreement.