June 12, 2013
When I started a managerial job with a bank, many of us in the batch were young (read, stupid) enough to believe all those inspirational ‘action’ flicks where we would see a bank’s officials valiantly defying and thwarting armed robbers’ efforts to loot it! Imagine our surprise, bordering on shock, when our training included very strict orders against any such acts of ‘valor’! We actually received strong official instructions to cooperate with the robbers in such a situation and just hand over everything and anything without any attempt at resistance! Today, when I look back, I laugh at the memory and the fact that we were capable of such naiveté! Of course, an employer’s primary concern is, and should be, the safety of its employees.
What happens when disasters, natural like Katrina, or man-made like the Boston bombings, strike – causing disruptions and preventing employees from even reporting to their workplaces? What if the work they do is such that it cannot be handled from a remote location like the employee’s home? What if the worker is an hourly employee, classified as nonexempt under the FLSA, and is not entitled to any of the reasonable accommodations that exempt workers are entitled to?
What does employment law require of employers in such situations, and how do those laws apply to agency contractors Let us look at them:
- Under the FLSA, hourly (non-exempt) workers are to be paid only for actual hours worked. So, hourly workers need not be paid when they are unable to reach the workplace, or if the employer was closed down. If the employee was eligible for any paid time off, or can claim leave under the FMLA or the ADA, the employer may allow the employees to apply it against the lost hours. Since most agency contractors are non-exempt, hourly workers, they would not be eligible for compensation from the agency or from the agency’s client. If the client intends to quickly resume activities and deems that the contractor is a critical worker, the client &/or agency may voluntarily pay the workers in order to ensure his continued availability. This, however, is the exception.
- If the workplace presents abnormally dangerous conditions or the employers, in good faith (even of it was later found to be untrue), believe that the safety of the workplace was in some way compromised by the disaster, and employees refuse to work in such conditions – their action will be protected under section 7 of the National Labor Relations Act or NLRA and the OSHA. They cannot be terminated by the employer. For contract workers, this becomes more complex as their employer of record – the staffing agency – must act as intermediary, working with the company that engaged the worker’s services to determine whether working conditions prohibit attendance.
- OSHA protects against an employer insisting on any employee reporting to work in a potentially dangerous situation where a person could be injured. Remember that OSHA holds both parties – agency and its client – responsible for all workers.
- If an employee is kept on call, or asked to wait, the hours would be compensable, as would hours spent at the workplace when the employee volunteers to help.
- Contract work assignments can be terminated at any time at the discretion of the company that engaged the services through a staffing agency. As such, the Federal Disaster Unemployment Assistance program which provides coverage to workers who lose employment as a result of a disaster does not apply.
As temporary workers continue to plan an increasingly important role in your success, be sure that your disaster planning considers the impact of your entire labor force – permanent and contingent. Work with each staffing agency to establish plans and common expectations so that, if disaster should strike, all parties are able to quickly take action and rapidly resume normal operations.
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.