Key Reminders for Texas Employers Dealing with Harvey
Houston may have a serious drainage problem, but it is a city with a big heart — and that includes its big-hearted employers. During the last week, countless employers in Houston have reached out to displaced employees and customers and encouraged unaffected employees to volunteer in their communities.
My guess is that, under the current circumstances, most Houston employers do not need to be reminded of their legal obligations to their employees. While Texas law prohibits employers from firing employees who leave the employee’s place of employment to participate in a general public evacuation ordered under an emergency evacuation order, I cannot imagine any Houston employer firing any employee because they evacuated because of the storm. That said, employers who might terminate employees for non-discriminatory reasons in the very near future should make sure that they can demonstrate that the termination decision was unrelated to the storm.
Additionally, while many employers have advised employees that they will not be docked or charged for Paid Time Off (“PTO”) if they are unable to make it into work, at some point, employers may have to revisit these generous decisions. While Texas employers are not required to pay non-exempt employees who don’t have PTO for their non-working time, if non-exempt employees are required to be on call at the employer’s premises (or in another manner where the employees are not free to use their time for themselves), or if the employees work remotely, they should be paid. Where they are not allowed under the “salary basis” rules to deduct for certain absences (like full-day absences), employers should also pay exempt employees their full, regular salary if the employee worked at all during the workweek, even if that work was done remotely.
Employers should also remember their obligations under USERRA,which covers members of the National Disaster Medical System and others in certain uniformed services. All 12,000 members of the Texas National Guard were activated in response to Hurricane Harvey; though these individuals are not protected by USERRA, they receive similar, basic protections, including a right to reinstatement, under Tex. Gov’t Code Ann. § 437.204.
The biggest human resources challenge for Houston employers in the next few weeks — and months — is not likely to be compliance with the FLSA, USERRA or the Texas Labor Code, but supporting those employees who suffered great losses during the storm. It’s not easy to focus on your job when you are living in temporary quarters and arguing with your insurance company. Employers should make sure that their supervisors and managers are sensitive to these issues, and if your company has an Employee Assistance Program, this would be a good time to remind your employees of the services that it provides.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.