Upset At Work? Don't Walk Out Or They'll Claim You Quit

I see scenarios where employees leave work early for entirely sane reasons. For instance:

• They are threatened by a coworker or customer and feel unsafe
• They are so upset by a confrontation with management or a coworker that they are crying
• They are sexually harassed
• They are called racial, ethnic, or other discriminatory names

Yet in each of these circumstances, I also see employers claim the employee quit or abandoned their position. Why the disparity?

As I see it, the employer was looking for reason to get rid of the employee and the employee gave them the excuse they needed. Otherwise, of course the employer would understand the employee leaving early to regroup, calm down, or get to safety.

In many cases, the employee actually calls or goes to HR or management and explains what happened and why they are leaving. They are told to go ahead and go. Yet they are still accused of abandoning their position or quitting.

What's an employee to do?

Here are some suggestions if you face intolerable conditions at work:

If you feel unsafe, call 911: Even this might not save your job, since many employees get fired for the very act of calling the cops. Still, this is probably better than leaving. However, if you are truly unsafe, such as being physically threatened, get the heck out of there. No job is worth your life.

Put it in writing: Rather than a call or in-person conversation, put your complaint in writing. Don't say you were bullied or "harassed." Say you were sexually harassed or harassed due to race, age, national origin, disability, or other protected category so you are protected against retaliation.

Ask permission: Instead of saying you are leaving, ask, again in writing, if it's okay to leave to calm down or get to safety. If you have permission, it's harder for them to say you quit or abandoned your job. If the permission is verbal, put that in writing. "This will confirm that you called me today at 4:32 p.m. and advised that I have permission to leave early due to my complaint of sexual harassment against John Doe. Thank you for your consideration."

Even these steps might not save your job, so try to stay if you can. But if you have to leave, document the best you can before you go.

You Don't Have To Work In Dangerous Post-Hurricane Conditions

After a storm, I usually get lots of calls and emails about employers making employees work in conditions they deem unsafe. In general, you don't have to work in unsafe conditions, so I'm re-posting this for those affected by Florence. Here's what OSHA says about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

OSHA also has a flyer about safety during disaster cleanup here. Some basic safety rules:

• Keep an adequate amount of clean water for drinking.
• Make sure workers are trained to do any complex or hazardous tasks.
• Provide the proper equipment such as gloves, respirators, boots, lifting equipment and eye protection.

A host of other specific fact sheets are here. Some particularly useful ones for hurricanes are:

• Hand hygiene and gloves in flooded areas.
• Chart of hazards and protective measures to take.
• Working outdoors in warm climates.
• Protecting workers from the effects of heat.
• Debris removal guidelines.

Bottom line for employers is: don't be stupid. Don't have employees in business attire climbing ladders and removing debris. Make sure employees are properly dressed. Don't cheap out and try to use your clerical employees to move downed trees or work around downed power lines. The lawsuit you will face when someone is seriously injured or killed will cost you way more than hiring the correct folks for the job.

The worker's page for reporting problems and with more resources is here.

By the way, if your "exempt" employees are doing debris removal or other scut work, they probably aren't exempt from overtime for that work. But that's another issue for another day.

If My Office Is Closed Due to Hurricane Florence, Do I Get Paid?

It's time, unfortunately, to re-run this popular and necessary column. I hope you make out okay in Hurricane Florence and suffer no damage. However, you may be wondering if you're getting paid.
Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than forty hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.

Exempt employees: If you’re exempt and you worked any portion of the work week, you have to be paid your entire salary, whether or not the office is closed for a natural disaster such as hurricane, snow, tornado, or flood. Further, Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if you are able to work after a storm then you must be paid even if you didn’t work any portion of the week. If you can’t get there on time or have to leave early due to the flooding but the office is open, they can’t deduct for any partial days you worked.

Vacation time and PTO: Your employer can deduct from your vacation time or PTO for the time taken. However, if you have no accrued vacation or PTO time available, they still can’t deduct from your pay if you’re exempt.

Non-exempt employees: If you are non-exempt, then your employer doesn’t have to pay for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.

Who Is Exempt?: You’re not exempt unless you fall into very specific categories, such as executives, administrative employees, or learned professionals. Plus, your job duties must fall within those categories, not just your title. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This is one of those rare times when it's better to be exempt, so it's the one time you can be glad that President Obama's overtime expansion was gutted.

Pay For Reporting To Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. North Carolina has no such requirement and neither does Texas, (so maybe it’s a good time to start complaining to your legislators). South Carolina has some protections for state employees but none that I've found for private sector employees.  North Carolina does have a law regarding employer adverse weather policies (they aren't required to have them though):

If an employer does establish an adverse weather condition policy, then pursuant to N.C.G.S. §95-25.13(2), the employer must: "Make available to its employees, in writing or through a posted notice maintained in a place accessible to its employees, employment practices and policies with regard to promised wages." The employer must comply with its own adverse weather policy until such time as the employer changes its policy in writing, notifies its employees of such changes prior to the effective date, and does not take away retroactively any benefits already earned, pursuant to N.C.G.S. §95-25.13(3).

Disaster Unemployment Benefits: If your state is declared a disaster, you may qualify for disaster unemployment assistance. If your state gets hit, here's where to start searchingto see if you can get disaster unemployment assistance.

If you’re hit or have already been hit with a big storm, get in touch with your supervisor or manager as soon as possible to find out whether or not you’re expected to be at work. If you can’t get in touch with anyone, then only go in if it’s safe for you to do so.