Everyone who flies knows the safety precautions to be used in an emergency. Parents place oxygen masks on themselves first and then, and only then, place masks on their children. The principle is a simple one: You cannot help others if you are in need of help yourself.

The potential threats these days are many – increased hurricane and tornado activity, pandemic bird flu, dam failure, or a terrorist attack. While some business disruptions are unavoidable in emergencies, adequate preparation can prevent some closures and shorten others. And like parents on a plane, you can’t attend to the needs of clients, customers or employees until you have your own emergency procedures in place.

Organization and planning are the keys to successfully weathering business disruptions. There should be a group within the organization responsible for developing a written plan. Someone must be tasked with the specific responsibility to monitor potential threats and keep others informed. Another person should be designated as a secondary monitor. Select the individual who will decide when to leave the premises and when to re-enter, who will protect critical equipment, and who will take charge if some key personnel cannot be present at the office. Develop and test telephone trees, with redundant confirmatory calls from the bottom to the top.

Make sure your organization conducts employee training on the new policy and full scale practice runs or drills. Staying calm in an emergency is critical, and that calm results from practice and communication of a clear and consistent emergency procedure.

In the event of a business closure, it is vital to reopen promptly, with minimal damage to the infrastructure of the business. Being proactive in planning, training and practice of emergency procedures often means getting back to business more rapidly.

In drawing up your emergency plan, you must answer a diverse set of questions. Where do employees work if your regular offices are not usable? How can the geographic diversity of operations be used to your advantage? How do you cope without electricity or phones? Are your computers safe? How will you pay your employees? Will employees need some assistance in the short term? Do you need business interruption insurance? How can you monitor and document losses and downtime for potential recovery?

Computer operations are the life blood of most companies. Is there off-site data storage, and is it secure? Ideally, employees and IT personnel should have remote access to company data from their homes, to keep at least some aspects of the business operational.

To be forewarned is to be forearmed. Act now to minimize disruptions to your business and to those you serve. Each business is different, and there is no “one size fits all” plan. In coordination with your HR and legal departments, you must think of the unthinkable and prepare.

What your clients, customers and employees will seek is calm reassurance. That can only be achieved if you have taken affirmative steps to be prepared. Review and update your policy on emergency procedures, and then follow through by training and drilling your employees on their roles. Only then can you rest assured that, when others are panicked, you are prepared.

Whether it’s hurricanes in Florida, flooding in the Northeast, tornadoes in the Midwest, or earthquakes in the West, natural disasters are all too common these days. Many of our clients want to know, “When a natural disaster strikes, what are my responsibilities to my employees?”

1. Are employers required to pay the employee for time missed due to natural disaster-related issues (blackouts, gas shortages, office closings, impassable roads, etc.)?

No. However, the Fair Labor Standards Act (“FLSA”) generally requires that employees who are exempt from the Act’s overtime requirements be paid their full weekly salary for any week in which they perform work. Unless the salary reduction satisfies specific requirements of the FLSA, employees who are otherwise exempt from being paid overtime may lose their exempt status if they are not paid their full salary for weeks in which they perform work.

To protect the exempt status, the employee should be paid his or her salary in full for time missed from work – unless the business is closed for the entire week due to inclement weather or lack of electricity, phones, etc. If the business is closed for the entire week because of natural disaster-related issues, employees do not have to be compensated for this time. If closed for less than a full workweek, the employees must be paid.

Also, if the business is open despite the inclement weather (or lack of electricity, phones, etc.) and the exempt employee does not (or cannot) come to work, the law considers this an absence due to “personal reasons.” Deductions from pay for a day or more are permitted and the exempt status is still preserved. Deductions for less than a full day, however, will always jeopardize the employee’s exempt status.

The non-exempt employee (one who is entitled to be paid overtime for hours worked over 40 in any week) is entitled to be paid only for time actually worked. Therefore, the employer is not required to pay non-exempt employees for absences caused by natural disaster-related issues (regardless of whether the business is open or closed).

Regardless of the reason for the absence, the employer may deduct time from vacation or paid-time-off accounts. However, if the employee does not have enough leave in his or her account, the salary may not be reduced unless otherwise permitted under circumstances described above.

2. Is the employer required to grant Family and Medical leave to employees injured as a result of a natural disaster, even where staffing levels are critically low?

Yes, if the employer is subject to the Family and Medical Leave Act (“FMLA”) (generally, employers who employ 50 or more employees) and the employee has worked for the employer for at least 12 months and at least 1250 hours in the prior 12-month period. Employees who, as a result of a natural disaster, suffer physical or mental injuries that fall within the definition of a “serious health condition” under the FMLA, or whose immediate family member suffers a serious health condition, must be given FMLA leave if they submit the necessary documentation. The time to submit the documentation may need to be extended depending on the circumstances of the natural disaster aftermath.

The leave must be granted even if the employer is suffering from severe staff shortages. The employer must continue to pay for an eligible employee’s health insurance during the time the employee is out on FMLA leave, even during times of financial or other critical demands on the business.

However, employees out on FMLA leave are not entitled to any special or different treatment as compared to those employees who were not out on leave at the time the natural disaster occurred. An employee on FMLA leave may be laid off, so long as the employer can prove that the employee would have been laid off during that time period had the employee not been out on leave.

There are many business and employment issues to consider before a natural disaster occurs. Please contact any member of BDB’s Workers’ Compensation/Labor and Employment Practice Group for assistance in this process.

Denise Bleau is a Partner in the Employment & Workers' Compensation Practice Group. She can be reached at dbleau@bdblaw.com or 561.241.0414.

Every employer is required, by federal and state law, to file a written report of every new hire, re-hire or the return to work of an employee who has been laid off, furloughed, separated, granted a leave without pay, or terminated from employment. That report is transmitted by the state where it is filed to the National Directory of New Hires, a component of the Federal Parent Locator Service, operated by the Federal Office of Child Support Enforcement, pursuant to the Personal Responsibility and Work Opportunity Act of 1996 (42 USC §653A). Each state has enacted its own statutes to comply with the federal law. There are some variations among the states. Ohio’s codification is set forth in Ohio Revised Code Sections 3121.89 through 3121.8911, while Florida’s is found at Florida Statute 409.2576.

The primary objective of the National Directory of New Hires is to increase national child-support collections. The states match New Hire Reports against their child-support records to locate parents, establish a child-support order or enforce an existing order. Other state programs are entitled to utilize the data contained in the National Directory of New Hires, including public assistance, unemployment and workers’ compensation programs, to prevent paying benefits to people who are, in fact, employed and ineligible for such benefits.

What an employer is required to report depends on the state. The minimum is set forth in the federal law and requires the reporting of six basic pieces of information – the name, address and social security number of the employee, plus the name, address and EIN number of the employer. Ohio adds two additional required pieces of information – the date of the employee’s birth and the date of hire. Florida requires only the federal minimum, but provides for optional reporting of the employee’s date of birth.

At least 14 states, including Ohio (but not Florida), also have reporting requirements for independent contractors as well as employees. Indeed, Ohio defines an “employee” for purpose of new-hire reporting as:

An individual who is employed to provide services for compensation to an employer and includes an individual who provides services to an employer under a contract as an independent contractor and who is an individual, the sole shareholder or a corporation, or the sole member of a limited liability company.

An employer need not have a minimum number of employees to be subject to the reporting requirements, and there are no exemptions. The law applies to all employees, including maids, nannies, and gardeners – any person who is an employee for federal income tax withholding, or in states like Ohio, even where the person is an independent contractor.

Many states have made it easy to fulfill the reporting requirements. The reports can be filed by mail (within 20 days of the new hire), or electronically (twice monthly). The electronic options include transmitting magnetic media, direct electronic transfer, and even through the state’s webpage.

Multistate employers have a special opportunity. They have the option of reporting all of their employees to a single state, regardless of where the employee actually performs services. In addition to administrative efficiency another advantage of such single-state reporting is that the employer gets to choose which state’s law it wishes to follow. In fact, an employer can actually choose from among several states (assuming the employer has at least one employee in that state) which 1) require only the minimum reporting required by federal law; 2) have no penalty for failure to report; and 3) do not require the reporting of independent contractors,. To take advantage of this provision, however, the employer must provide written notification to the United States Department of Health and Human Services and all of the states where it has employees, of the election to file in a single state. Furthermore, the multistate employer must file reports electronically (on the twice-monthly schedule) to take advantage of this option.

Third-party payroll services will often offer to provide new-hire reporting for employers, and that can be a convenient option. Note however, that payroll services cannot take advantage of the option of reporting a multistate employer’s new hires to a single state. Temporary agencies are responsible for reporting any employee they hire for an assignment.

As can be imagined, the information contained in the National Directory of New Hires is quite extensive. By law, access to that data is strictly controlled and limited to state and federal agencies for specific purposes. The data is not available to creditors or other private parties.

There are many resources available to employers seeking to comply with the new-hire law, from websites to printed materials and telephone hot lines. Many of the forms required can be downloaded on-line. While it is hoped that all BDB clients are complying with the law, any employer with questions about how to comply with new-hire-reporting requirements should contact a member of the practice group.

Doug Paul is a Shareholder in the Employment & Workers' Compensation and Litigation Practice Groups. He can be contacted at dpaul@bdblaw.com or 216.615.7340.

United States Supreme court Broadens Scope of Illegal Retaliation Under Title VII

By Jan E. Hensel

On June 22, 2006, the United States Supreme Court issued an important decision that clarifies what constitutes unlawful retaliation under Title VII of the Civil Rights Act of 1964. In the case of White v. Burlington Industries, the court held that the Act’s anti-retaliation provision forbids certain actions of the employer that do not affect the “terms and conditions” of employment. Furthermore, the anti-retaliation provision also prohibits certain actions that are not related to employment or occur in the workplace. Instead, this provision forbids all employer actions that would be materially adverse to a reasonable employee or job applicant, if harmful to the point that they could dissuade a reasonable worker from making or supporting a charge of discrimination.

In the White case, the plaintiff, Sheila White, alleged that after complaining of sexual harassment by her supervisor, she was removed from her forklift duty to standard track laborer tasks. Even though the duties fell within the same job description, Ms. White submitted evidence that the track laborer duties were more arduous and dirtier than the forklift operator position, and that the latter position was considered a better job by male employees who resented White for occupying it. In addition, she was subjected to a 37-day suspension without pay, although the suspension was later rescinded and Ms. White received back pay. The Court held that, even though the reassignment of duties was within the same job description and Ms. White suffered no reduction in pay, and she eventually was reinstated with back pay and her suspension rescinded, the actions were sufficiently adverse that they could dissuade a reasonable employee from pursuing protected activity.

The core anti-discrimination provision of Title VII prohibits discrimination that affects an employee’s “compensation, terms, or conditions of employment,” on the basis of that person’s “race, color, sex or national origin.” The Court noted that the language of that section explicitly limits its scope to actions that affect employment or alter the conditions in the workplace. Thus, to establish illegal discrimination, the employee must establish that the challenged action resulted in an adverse effect on the terms, conditions or benefits of employment.

The anti-retaliation provision is worded differently. It states that it shall be an unlawful employment practice for an employer “to discriminate” against an employee or applicant because that individual “opposed any practice” made unlawful by Title VII or “made a charge, testified, assisted or participated in” a Title VII proceeding or investigation. Prior to White, the Circuit Courts had reached different conclusions about whether the challenged action under the Act’s anti-retaliation clause has to be employment or workplace related and about how harmful that action must be to constitute retaliation.

Several circuits, including the 6^th Circuit, which governs Ohio, had required a plaintiff claiming retaliation to show an “adverse employment action,” defined as a “materially adverse change in the terms and conditions of employment” – the same showing required for a claim of discrimination. In White, the Supreme Court disagreed with this analysis. Because the purpose of the anti-retaliation provision is to prevent an employer from interfering with – through retaliation – an employee’s efforts to secure enforcement of the Act’s basic guarantees, limiting unlawful retaliation to employment-related actions would not deter many forms that effective retaliation can take. Citing two examples of retaliation causing harm outside the workplace – the FBI refusing to investigate death threats against an agent and his wife, and the filing of a false criminal charge against a former employee who complained about discrimination – the Court held that the provision’s purpose of ensuring that employees feel free to approach appropriate officials with grievances regarding violations of the Act would be thwarted if the employer could avoid liability for such actions.

Thus, the Court held that employer prohibited activity under the anti-retaliation provision of Title VII is broader than under the anti-discrimination provision. However, the Court emphasized that the anti-retaliation provisions do not protect an individual from all retaliation, but only retaliation that produces injury or harm. Thus, a plaintiff must show that the employer’s action would be considered to be materially adverse by a reasonable employee and would dissuade a reasonable worker from making or supporting a charge of discrimination.

Exactly what actions may constitute retaliation will have to be viewed in context. By way of example, the Court stated that, while a schedule change may make little difference to most employees, it “may matter enormously to a young mother with school aged children.” A supervisor’s refusal to invite a subordinate to lunch is normally a trivial, nonactionable slight. But excluding an employee from a weekly training lunch that contributes significantly to an employee’s professional advancement might constitute illegal retaliation.

The White decision expands the scope of employer activities that constitute illegal retaliation under Title VII. Thus, employers must be diligent to ensure that they take no “materially adverse” action against employees who have engaged in protected activity. It is important that employers educate all supervisors about this new definition of retaliation. In addition, employers should take this opportunity to review and update their anti-retaliation policies and conduct in-house training on the policy. It is now more critical than ever that employees have an appropriate mechanism for reporting acts of retaliation so that employers can take the necessary steps to stop it.

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Jan Hensel is a Shareholder and Co-Chair in the Employment & Workers' Compensation Practice Group. She can be reached at jhensel@bdblaw.com or 614.227.4267.

Save the Date for these Upcoming Presentations:

August 9 - Denise A. Gary, Kristina M. Harless, Barbara A. Knapic, Robert C. Meyer, Tod T. Morrow, and Mary E. Reynolds (Buckingham Canton^SM) will be presenting at a Lorman Education Services seminar entitled, “Workers’ Compensation in Ohio.” It will take place at the Sheraton Suites in Cuyahoga Falls, Ohio.

September 21 and 29 - Barbara A. Knapic (Buckingham Canton^SM) will be speaking at the Ohio State Bar Association’s Advanced Workers’ Compensation Seminars. The first one will take place in Columbus, Ohio. The second presentation will be in Cleveland, Ohio. On December 18, Ms. Knapic will make a presentation at a National Business Institute Advanced Workers’ Compensation Seminar.

Out and About - Recent Presentations:

Denise J. Bleau (Buckingham Boca^SM) presented at a Lorman Education Services Seminar in West Palm Beach, Florida. Her topic was "What You Need to Know About Public Records and Open Meetings." Ms. Bleau also presented to the American Woman’s Society of Certified Public Accountants (AWSCPA), along with Rana M. Gorzeck (Buckingham Boca^SM). The topic was “How a Hurricane or Other Natural Disaster Will Affect Your Business Responsibilities to Your Employees.”

Gerald B. Chattman (Buckingham Cleveland^SM) spoke at the National Business Institute Seminar called "The New Age of Corporate Governance for Nonprofit Organizations."

Barbara A. Knapic (Buckingham Canton^SM) made a presentation to the Ashland Chamber of Commerce Safety Counsel at the Ashland Country Club. Her topic was “Workers’ Compensation Claims - To Certify or Not to Certify.”

Mary E. Reynolds (Buckingham Canton^SM) gave a presentation for the Basic Workers’ Compensation OSBACLA Seminar regarding “The Hearing Process.”

Scott Topolski (Buckingham Boca^SM) presented at a NBI Seminar in West Palm Beach, Florida. His topic was "Successfully Collecting Debts and Judgments."

If you are interested in obtaining information on upcoming seminars or would be interested in having speakers from Buckingham, Doolittle & Burroughs, LLP make a presentation to your organization, please contact: Lorna Henderson, Client Relations Administrator lhenderson@bdblaw.com or 800.686.2825 ext. 86473.