Disasters can take many forms. When a disaster strikes a business, regardless of whether it emanates from natural or human causes, there will always be significant human resource issues that must be addressed and often very quickly. In the aftermath of any disaster, every business must make the decision of whether and how to move forward. A company’s employees are a critical component of any recovery plan. If employers fail to manage them well and meet their needs, other recovery efforts may be futile. Even if an employer decides that a facility or the entire business cannot reopen, it will be essential to respond to employee concerns to avoid or minimize the risk of serious legal liability.
Sound disaster planning requires that human resource issues be recognized as being of first order importance and adequate attention must be given to them both in the preventive and remedial aspects of any disaster prevention and recovery plan. The goals are:
This chapter will provide an overview of some of the fundamental issues that need to be addressed in a post-emergency incident response. From this, employers can devise preventive steps that can maximize the chances the business will be able to recover.
For every casualty event, there will be disruptions of the ability of employees to conduct their normal work activities. They may not have an office or a factory to return to if there has been a fire or explosion. In the event of a natural disaster such as a flood or hurricane, they may be unable to access the work site for a considerable period of time. In the event of bioterrorism or a disabling cyber-attack, there may be no way for employees to use the facility or access the information necessary for them to do any meaningful work.
Immediately after a disaster strikes a company must let the employees know whether they should report to work. This may not be such a simple process. Moreover, federal, state and local efforts to protect employees from surprise plant shutdowns may complicate the task. At the federal level, the Worker Adjustment and Retraining Notification Act (WARN) requires covered employers to provide 60 days advance notice of a plant closing or mass layoff. See Chapter 25: Plant closings and mass layoffs. Even a temporary shutdown of a plant can be covered if it results in an employment loss during any 30-day period for 50 or more employees. Besides notifying employees, companies must also notify state or local officials. Failure to give the necessary notice can leave the employer exposed to governmental fines and an obligation to continue to pay wages and benefits to the affected employees. At a time when husbanding corporate resources may be critical, having a WARN exposure may prevent a company from being able to reopen.
WARN does provide exceptions to the 60-day notice requirement if the plant closing or mass layoff is due to any form of natural disaster, such as a flood or earthquake or if it is caused by “business circumstances that were not reasonably foreseeable as of the time notice would have been required.” These exceptions are very narrowly construed.
Some companies have concluded that they did not have to worry about WARN at all if they fell within these exceptions. But the statute goes on to require that even when there is a justifiable reason for giving less than 60 days advance notice, the employer “shall give as much notice as is practicable and at that time shall give a brief statement of the basis for reducing the notification period.” In several reported cases, employers have been held liable for the full 60 days of wage and benefit obligations because they failed to meet this requirement. Employers might ask themselves whether their business could meet the reduced notice standard if it no longer had access to its employment records in either hard copy or electronic form. To whom would the notices be sent?
WARN is not the only source of an employer’s obligation in this area. State and local laws in many jurisdictions provide enhanced notice requirements and remedial provisions. In addition, collective bargaining agreements may also obligate employers to provide certain notices before the obligation to pay wages can be suspended.
In a unionized setting, the employer may not be free to respond unilaterally to all of the many concerns that must be addressed immediately after a disaster. Under some union contracts, the union is treated as having shared governance with the employer over such issues as wages, hours and other terms and conditions of employment. Depending on what the union contract says about the issue, the company may have to begin immediate negotiations with the union business representative to avoid incurring liability.
Even if the union contract allows the employer to take unilateral action in laying off employees, transferring production, relocating bargaining unit work, etc., employers are still required to negotiate in good faith with their union counterparts over the effects of these decisions on bargaining unit employees. The failure to engage in “effects bargaining” may subject the company to sanctions, including being ordered to reopen a plant under certain circumstances.
Disasters rarely affect a company without affecting its employees. Human resources must be prepared to respond by meeting the employees’ immediate needs.
When a disaster strikes, employees still must be paid. They may need the money more than ever. Paying accrued wages when due is not only a contractual obligation of the employer; many states have wage payment laws that make it a criminal violation for an employer to fail to pay wages when due and grant employees liquidated damages, statutory penalties or attorney’s fees. Moreover, the majority of these laws extend beyond the corporate employer to the officers of the corporation who have the authority to pay the wages. While coping with the other aspects of a disaster, the last thing that a CEO needs is to be arrested on a criminal law wage payment violation based on the complaint of employees who are upset about not being paid. See Chapter 10: Wages and hours.
Benefit plan administration also needs to be maintained during a disaster. Health claims, life insurance claims and disability claims need to be processed and resolved. In the aftermath of September 11th, 2001, there were many families of World Trade Center employees who were unable to resolve benefit issues. Fortunately for them, emergency relief funds were able to tide many of the families over the immediate period of shock. It is far from common that such disaster funds are available in less extreme situations. See Chapter 15: Benefits.
If the disaster involved particularly traumatic events, such as an incident of workplace violence or a natural disaster in which coworkers’ lives were lost, the survivors will need counseling services to debrief them on the incident and to begin grief counseling. Security, biohazard or other personal protective measures may need to be put into effect. It is legally essential to offer employees a safe and healthy workplace and it is necessary on a practical level that employees have the psychological comfort that it is safe for them to come to work. See Chapter 33: Safety and health.
Since passage of the Americans with Disabilities Act (ADA), employers have been prohibited from making many types of medical inquiries. See Chapter 13: Disabilities and reasonable accommodation. Yet, such information is essential if an employer is to implement an effective plan for evacuating employees who suffer disabilities. The Equal Employment Opportunity Commission has issued guidance on three circumstances when it is permissible for an employer to seek medical information:
Although the ADA generally requires confidential treatment of medical information of applicants and employees, an exception permits first aid and safety personnel to have necessary information. Medical professionals, emergency coordinators, floor captains, colleagues who act as buddies, building security officers and other non-medical personnel who oversee evacuations qualify as first aid and safety personnel. These individuals are entitled to only that portion of an individual’s medical information that is necessary to carry out a first aid or evacuation plan.
If workplace deaths are involved, the Occupational Safety and Health Administration (OSHA) must be called in within eight hours so that an investigation can be launched. This is in addition to any investigation being conducted by local law enforcement, the Environmental Protection Agency, the Chemical Safety Board or a host of other agencies. When a disaster strikes, a team of company representatives must be ready to meet with OSHA or these other agencies, guide the inspection process and oversee responding to government requests to inspect facilities and documents and to interview employees. This is a particularly sensitive issue because OSHA can not only impose enormous fines, but it can refer matters for criminal prosecution. See Chapter 31: Safety and health.
It is not only the physical loss site that will need to be protected against intentional, accidental and/or weather induced changes in condition. A fire, flood, explosion or other disaster may mean that large numbers of outsiders suddenly have a legal right to enter the premises. Trade secrets or confidential proprietary information may be lost or fall into the hands of competitors. Therefore, access and information security controls need to be imposed. Centralized coordination must be used to control document production, access to witnesses and inspection of the pertinent physical evidence. Individuals who are given access to the site may need to sign releases or agreements to protect proprietary information. If not already in existence, restrictions will need to be implemented, even on law enforcement agencies, concerning duplication of confidential documents or photographing sensitive equipment or installations.
In the immediate aftermath of a disaster, employees will naturally worry whether they will have jobs to go back to or whether those jobs will be secure. They are particularly vulnerable to overtures from the competition. It will not help to rebuild the plant if all of the customers have been pirated away with the sales force. The only effective way to prevent this is to identify key employees and lock them in with binding agreements prohibiting them from working for the competition for a period of time after their own employment ends. These can be combined with confidentiality and no-solicitation agreements to safeguard the kind of non-balance sheet assets that will never be covered by an insurance policy. See Chapter 11: Disabilities and reasonable accommodations.
There are many steps than can be taken in advance so as to be prepared for a crisis. These actions will allow corporate executives to concentrate on other important issues, confident that they have already acted to reduce their risk of liability and satisfied the immediate needs of one critical stakeholder group: the employees. Among the items that should be considered in advance of a crisis:
Policies and Forms
Disaster planning — Federal
Recruiting and hiring — Federal
Background checks — Federal
Immigration — Federal
Temporary and leased employees, interns and volunteers — Federal
Independent contractors — Federal
Restrictive covenants and trade secrets — Federal
Policies and procedures manuals — Federal
Wages and hours — Federal
Child labor — Federal
Discrimination — Federal
Disabilities and reasonable accommodations — Federal
Workplace harassment — Federal
Benefits — Federal
Health insurance reform — Federal
Family and medical leave — Federal
Military leave — Federal
Other types of leave — Federal
Performance evaluations — Federal
Personnel files — Federal
Workplace investigations — Federal
Discipline — Federal
Termination — Federal
Plant closings and mass layoffs — Federal
Health insurance continuation coverage — Federal
Whistleblower protections — Federal
Privacy rights — Federal
Health insurance portability and privacy — Federal
Employment in the Internet age — Federal
Social media — Federal
Safety and health — Federal
Workplace violence — Federal
Politics in the workplace — Federal
Celebrations in the workplace — Federal
Federal contractors and affirmative action — Federal
Public employers — Federal
Unions — Federal
Drugs and alcohol — Federal
Telecommuting — Federal
Diversity in the workplace — Federal
International employment law — Federal
Employment practices liability insurance — Federal
Disaster planning — Federal
Pandemic outbreaks — Federal
Appendix A: Federal recordkeeping requirements
Appendix B: Posting requirements