Can I Lose My Job Because Of Hurricane Sandy?
Q: Can my employer let me go because of the damage done by Hurricane Sandy? I have worked for my employer since 2001, but the hurricane destroyed where I work. I have moved far up my place of employment, and I have very loyal customers. Now we may not be open for another month. I don't think they will pay me again as well as others since we are closed. Can my employer lay me off and not pay me? I am at the end of the day just an employee, a valued one, yes, but I don't know what can happen.
How awful! As someone who lives in South Florida, I certainly understand the havoc that a hurricane can wreak. There is no law requiring any employer to stay open or continue to pay employees if the workplace is destroyed by a natural disaster. However, it is in your employer's best interest to get up and running as soon as possible. Hopefully they have insurance coverage.
You aren't completely without legal remedies, though.
Here are some workplace rules and possible situations that employees should know about in the case of a natural disaster:
1. The WARN Act
If your employer is large enough, it is covered by the Worker Adjustment and Retraining Notification Act. WARN requires most employers with 100 or more employees to give 60 days' notice in advance of a plant closing or mass layoff that affects 50 or more employees at a single worksite. Obviously in case of a natural disaster your employer won't have advance notice. The WARN Act makes an exception for employers whose worksites are destroyed. Your employer is still required to give as much notice as possible. They can send notice to employees' last known addresses. If employee records are also destroyed, they can post notices at the worksite or post a notice in a newspaper.
Here's what the U.S. Department of Labor says about the reality of enforcing this law in case of a disaster: "In all likelihood, if the employer gave no notice in those circumstances, it may not be held liable for failure. On the other hand, if the employer wants to rebuild, it may be in its interest to make efforts to contact its employees to be sure it has a workforce when it reopens."
2. The Fair Labor Standards Act
Your employer must pay you for all hours worked the week of the disaster (and any work you do to help afterwards). If pay records are destroyed, that makes things tough for the employer, but it doesn't relieve them of their obligation to pay. While non-exempt employees don't have to be paid for any time not worked, the rules are different for exempt employees. Exempt employees must be paid for the entire week if they worked any portion of that week. Exempt employees don't have to be paid anything for any full week the business is shut down.
3. Pay For Reporting To Work
If you report to work after a natural disaster, only to find out that the workplace is closed or destroyed, New York law requires the employer to pay you at least four hours of wages, and New Jersey law requires the employer to pay you at least one hour of wages. Other states that have some requirements for pay if workers report for duty as scheduled are California, Connecticut, Massachusetts, New Hampshire, Oregon and Rhode Island, as well as the District of Columbia.
4. Exceptions For First Responders And Health Care Workers
While mandatory overtime for health care employees is prohibited in New York and New Jersey, there's an exception for a declared state of emergency. New Jersey also prohibits discrimination against employees who miss work due to being volunteer first responders.
5. Risk of Job Discrimination
Studies show that, post-natural disaster, the wage gap for women and minorities widens. If you think that men are being returned to work first, that you're paid less than men once you go back, or that some other discrimination is occurring based on race, age, sex, national origin, pregnancy, genetic information, or other protected category, natural disasters do not relieve companies of their obligation to comply with discrimination laws.
6. Eligibility For Unemployment Compensation
If your workplace is destroyed, you should qualify for unemployment. In New York, you can apply here. For New Jersey, you can apply here. The federal government provides additional disaster employment assistance in case of a natural disaster. You can apply through your state's unemployment office.
7. Required Severance
If your employer has a published severance plan, it may be considered an "employee welfare benefit plan" covered by ERISA, which means the employer must pay it. If you have a contract providing for severance if you are fired without cause, then your employer must pay the amount they agreed in the contract. If the contract is for a particular length of time and doesn't say otherwise, the employer must pay you for the length of the contract (unless the contract says it can be cancelled without notice due to a disaster). There is no law requiring severance pay, so absent a company severance plan or a contract, you are out of luck.
If your workplace is closed or destroyed due to a natural disaster, I suggest you get in touch with your supervisor as soon as you can to find out what is happening and any plans to reopen. If the company is shut down indefinitely, it's time to polish that resume and start looking.
If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.
Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
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Donna Ballman’s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently released and is currently available for purchase. The book won the Law category of the 2012 USA Best Book Awards. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 ABA Blawg 100 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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