In the wake of Hurricanes Harvey and Irma, thousands of Texans and Floridians are out of work, some indefinitely. Without knowing when their employers might reopen for business (if at all) , many are uncertain how they’re going to afford their next meal or purchase basic necessities, much less repair their damaged homes and property. At the same time, monthly bills are coming due.
Vice News recently shared one Houston family’s gripping story of how Harvey has devastated them financially. Guadalupe and her husband are undocumented immigrants living in Houston with their three daughters. He works as an electrician, and like many families across the country, they live paycheck-to-paycheck and do not have savings adequate to withstand an emergency. As Hurricane Harvey approached, Guadalupe’s husband was sent home early from work, and as of the time Vice ran its story on September 2, he had not been able to return. Guadalupe’s family is fortunate that Harvey only caused minor damage to their home, but with her husband out of work for several days, they are now behind on their rent.
In Cocoa Beach, Florida, bartender Joe Lynberg told Florida Today that he had expected a busy weekend for the start of the NFL season, but because of Hurricane Irma he “just lost his whole week’s salary, plus tips.”
Both Joe Lynberg and Guadalupe’s husband are hourly employees, according to the stories, meaning they are non-exempt employees under the federal Fair Labor Standards Act (FLSA) – the primary federal law governing employee pay. Unless a state law, company policy, or collective bargaining agreement say otherwise, under the FLSA, employers must pay non-exempt employees only for the hours actually worked, so when a business closes up shop for a storm, hourly employees are not legally entitled to pay.
The FLSA provides a bit more protection for salaried or “exempt” employees. If a business closes for a hurricane for less than one full week, an exempt employee must be paid for the days of closure if the employee worked even a few minutes during the payroll week. However, according to the Department of Labor, an employer can ask employees to use vacation time or personal leave time to cover the time off, unless a state law, company policy, or collective bargaining agreement provide otherwise. Notably, there is an exception to the FLSA requirement that an employer pay the full day’s wages: If the exempt employee indicates that he or she was unavailable to work had the business remained opened on one of the days it closed, the employer is not required to pay the exempt employee for that day’s work. In addition, if a business closes for an entire payroll week due to the hurricane and an exempt employee performs no work that week, the employer is not required to pay the employee for that week.
Some employers, even when not legally required to, do right by their workers and pay them for the time the business remained closed due to the storm. But many workers will not have this luxury and will need to turn to federal and state assistance programs for help.
Workers across dozens of counties in South Texas and Florida who have lost their jobs may be eligible to receive temporary financial relief for up to 26 weeks through the federal government’s Disaster Unemployment Assistance (DUA) program while they search for new work. To qualify for DUA, the applicant must have lost his or her job as a direct result of Hurricanes Harvey or Irma and be ineligible for assistance through regular state unemployment insurance. (For more on DUA, check out this excellent NELP Fact sheet.)
For all other federal assistance, such as through the Federal Emergency Management Agency (FEMA), individuals can apply online through www.DisasterAssistance.gov.
But that’ll do nothing for Guadalupe and her husband, because undocumented workers aren’t eligible for assistance through these programs. They’re open only to U.S. citizens and eligible noncitizens. Even for eligible noncitizens, overcoming discrimination and proving legal status can be a major challenge, especially for those who may have lost important documents during the storm. In Harvey’s wake, The Atlantic reports, Texas RioGrande Legal Aid has received numerous calls from residents in need of assistance with “food, shelter, and the legal matters underpinning their access to both—like ensuring that immigrants who’d lost documentation could enter shelters.” Undocumented workers who are in need of assistance and/or fear deportation may wish to consider contacting a legal aid office near them.
For workers who are only temporarily out of work, another host of challenges may arise as companies start to reopen and call employees back to their jobs. People who lost their homes, cars, and other belongings may have nowhere to stay in the area and/or no way of getting to and from work. And until schools reopen, parents may have no one to care for their children while they are at work.
When personal or family medical matters make it impossible to return to work immediately, federal law may protect them against being fired or retaliated against, in certain circumstances. For example, the Americans with Disabilities Act (ADA) requires employers with 15 or more employees, and state and local governments, to make reasonable accommodations to employees injured by Hurricane Harvey or another such catastrophe. Under the Family and Medical Leave Act (FMLA), which applies to private employers with 50 or more employees, all government employers, and all public and private schools, workers may be entitled to leave from work if they suffer a serious health problem or need to take leave to care for a sick child or family member. However, employees who take leave under the FMLA are not legally entitled to pay for the time they are out of work.
And as repairs and rebuilding activities get underway, workers may be protected by the Occupational Safety and Health Act (OSH Act) and the National Labor Relations Act (NLRA). In workplaces covered by the NLRA and the OSH Act, workers are protected from retaliation for refusing to perform dangerous work as long as the employees have a reasonable, good-faith belief that doing the work would be unsafe. That said, if an employer does retaliate, pursuing legal recourse under the law can be a stressful and time-intensive process that can leave workers strapped financially and without a job, at least temporarily.
Employees can also look to state laws, company policies, and collective bargaining agreements for additional protections, and in many instances, these sources may offer better remedies or options for pursuing recourse than those available under federal law.