October 31, 2005 - Jacob M. Monty, Monty Law Partners, LLP

What legal protections do employees have if they followed evacuation orders and left work to evacuate? 

Following the evacuation due to Hurricane Rita, a number of questions arose from both employers and employees regarding an employees legal protections subsequent to the evacuation.  Employees who evacuated, many under mandatory evacuation orders, are expressing their concerns over whether they can be subject to discipline for having missed work and whether or not they will be paid for days missed.  Employers are concerned about whether or not there is a legal obligation to compensate employees for time away from work and whether or not there is an obligation to pay both hourly and salaried employees. 

It is important for both employers and employees to be aware that anytime a public evacuation order is issued, such as the one issued during Hurricane Rita, employers have certain legal obligations to their employees. 

TEXAS LAW
Under Texas law, an employer may not fire or in any other way discriminate against any employee who leaves their place of employment if the employee leaves to participate in a general public evacuation ordered under an emergency evacuation order.  An employer who violates this law may be liable to the employee for loss of wages and benefits, and the employee who is discharged may be entitled to reinstatement in the same or in an equivalent position of employment with equivalent pay.  An “emergency evacuation order" means an official statement issued by the governing body of this state, or a political subdivision of the state, which recommends the evacuation of all or part of the population of an area stricken or threatened with a disaster.

FEDERAL LAW
Under the Fair Labor Standards Act (FLSA), employers are not required to pay non-exempt (i.e., hourly) employees for time away from work.  However, an employer may not cut an exempt (salaried) employees pay if that employee worked any time during the week [of the evacuation], except in full-day increments, if at all.  As a general rule, employers are allowed to require exempt employees to use vacation or other paid time off for time missed from work, however, the requirement applies only to absences for personal reasons, sickness, and disability.  An employer may not require an exempt employee to use paid time off for other reasons, and federal regulations require that a preexisting bona fide plan providing for substitution of paid time off for sickness or disability be in place if they are going to require the employee to use their personal or sick time.

THE BOTTOM LINE
With regard to hourly employees, if an employee took time off during the evacuation, employers may refuse to pay the employees or require those employees to use their paid time off as a result of the missed work.  If an employer chooses to do this however, it is important to apply the policy across-the-board to all employees, and in a non-discriminatory way, so that no questions arise as to whether an employee was docked pay for evacuating under governmental orders.
With respect to exempt employees, under federal law, an employer must pay their employees their normal weekly salary unless the employer can be established that the employee missed work due to personal reasons, illness or disability and not due to the evacuation order. 

As to both exempt and non-exempt employees, if any employee is laid off or disciplined (e.g., hours are diminished, schedules altered, duties are changed, etc.) due to an absence from work because the employee followed emergency evacuation orders, any employee may have a claim under the Texas state evacuation statute for unfair discharge in violation of Texas state statute.  Most importantly, if the employee can prove that they were discharged or discriminated against because they left work under a general public evacuation order, the protections of the law could allow them to recover loss of wages, loss of benefits and an employer could be required to reinstate the employee in the same or in an equivalent position with equal pay. 

The best policy for all employers appears to be to pay exempt employees their weekly salary unless they can prove the employee took time off unrelated to the evacuation.  Hourly employees are not required to be paid for time taken off during the evacuation, however as with all employees, it is very clear that any changes made to an employees pay or duties should not be a result of the hurricane evacuation.  Not only is this the law, it is good human resources policy.