Make proper WARN Act notifications. In areas totally devastated by a natural disaster, some businesses might not operate for extended periods of time. This may lead to plant closings or mass layoffs as businesses pick up the pieces. Generally, under the federal Worker Adjustment and Retraining Notification (WARN) Act, employers with at least 100 full-time employees must provide at least 60 days’ notice prior to closing a plant or mass layoffs. However, an exception applies when the closing or layoff is due to a natural disaster (20 CFR §639.9(c)(3)). Closings due to Hurricane Ida would apply this exception.
Despite this narrow exception, employers must still provide “as much notice as is practicable,” as well as a reason why the normal notification period was not followed. The devastation following a hurricane would justify the lack of immediate notice.
Proper WARN Act notifications must include:
While the law suggests that sending written notice to employees’ last known address is reasonable, employers may take advantage of electronic means, such as email or text messaging, for the sake of expediency. This may be especially helpful for employees residing in the immediate path of a hurricane, who may be displaced and not receive written notice in the aftermath of the storm. Employers also must be mindful of any applicable state or local WARN-type notice requirements.
Use caution if penalizing post-disaster absences. If an employer is open for business after a disaster, absences caused by transportation difficulties experienced during weather emergencies could be deemed an absence for personal reasons under federal law. In these instances, 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 the employee 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, employers may not deduct salary for less than a full day’s absence. Instead, an employer may make a partial day time deduction from the employee’s leave bank (if there is insufficient time in the leave bank, no deduction from salary can be made; however, the employer can deduct from future accrual). Employers may also establish leave sharing banks to allow employees who need such leave because of the storm. Further, employers may require exempt employees to “make up” lost time after they return to work. Such is not allowed for nonexempt employees, as they must be paid overtime for all hours worked over 40 in a workweek.
It is also possible that some employees may be called up by the National Guard or Reserves to help in recovery efforts after a storm. In this case, employers also must comply with the requirements of the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA prohibits discharging, denying initial employment, denying promotion, or denying any benefit of employment because of a person’s membership, performance of service, or obligation to perform service in uniformed service. Employees on USERRA leave, at their option, may use available paid leave benefits to be paid for their time away from work. (Louisiana’s version of USERRA, La. R.S. 29:422, was adopted in the aftermath of 9/11.)
To be eligible for USERRA leave, an employee must:
Louisiana law also has requirements for employees called to duty as “first responders,” including medical personnel, volunteer firefighters, emergency medical technicians, and auxiliary law enforcement officers who may be needed in search-and-rescue and recovery efforts. These employees are entitled to be placed on temporary leave and must be reinstated to their prior position once the employee reports back to work within a reasonable time from their release from first-responder duty. The same must apply if the employee was injured or became ill as a result of duties performed as a “first responder.” Such leave will be unpaid, but employees, with their employer’s permission, may use vacation, sick leave, and accrued compensatory leave during this term of service.
Be creative with financial support. In addition to leave banks, the federal Victims of Terrorism Tax Relief Act of 2001 states that employers may create a “tax-efficient” charitable fund to support employees affected by hurricanes and their families (i.e., an Employer Controlled Foundation). Created after 9/11, this type of fund allows employers to make tax deductible donations to the fund, and distributions are tax free to qualified employees. While this may be a noble way to support employees unable to work, unemployment benefits can be reduced by earned wages. Essentially, all payments to employees, including dismissal pay, vacation, or holiday pay, bonuses, and payments pursuant to the WARN Act may reduce unemployment benefits.
Jackson Lewis attorneys are available to answer inquiries regarding post-disaster compensation, leave, and benefits and other workplace issues.
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