The Hurricane Katrina Disaster FAQs (continued)

EMPLOYEE BENEFITS

1. Contributions to our pension plan are due in the next few weeks. Because of Katrina, we either can't make the contribution or can't determine how much is owed. What can we do?

IRS, PBGC and DOL have announced that pension plans affected by Katrina have until October 31, 2005 to make minimum funding contributions or apply for waivers, if the original deadline for these actions was between August 29, 2005 and October 30, 2005.

"Affected" plans are those located in one of the parishes or counties declared by President Bush to be eligible for individual assistance under the Stafford Disaster Relief and Emergency Assistance Act because of Katrina. A plan is located in one of these areas if:

• the employer that maintains the plan has its principal place of business there (in the case of a single employer plan); or
• employers employing more than 50% of the plan's active participants have their principal places of business there (in the case of multiple or multiemployer plans); or
• the office of the plan administrator is located there; or
• the office of the plan's primary recordkeeper is located there; or
• the office of the enrolled actuary or other advisor who has been retained to determine the plan's funding requirements is located there.

An office is located in the affected area if it is the site of the plan's records or the worksite of the persons responsible for determining minimum funding requirements for the period.

2. Can our employees take loans or hardship distributions from our 401(k) plan?

Check your plan document to see if it currently provides for loans and hardship distributions, and to determine if the plan's definition of hardship includes amounts for repair of a primary residence (rather than just maintaining the mortgage on a primary residence). If the plan language allows for loans/hardships for repair, such distributions can be made with no further effort. If not, you can allow for such distributions and for other general hardships, but must amend your plan document to align it with your decision before the end of the current Plan Year. Any changes made to a plan document must be reflected in a summary of material modification to employees, although that document can be provided at a later time. Do not add loans or other hardship distributions to your document without first discussing this new plan option with your recordkeeper or trustee first.

3. We need to send COBRA notices to former employees, but we don't know where they are or their homes have been destroyed. What do we do?

COBRA requires that COBRA notices and election forms be sent to a last known address. To fulfill this legal requirement, you should send COBRA notices to your employees' last known address, assuming they have not called to report new addresses. Daily updates are made to the post office's website regarding mail acceptance and delivery to the affected areas. Go to www.usps.com for the most recent delivery information.

4. We haven't received a COBRA payment from a former employee. What do we do?

By law, you must provide a 30-day grace period for COBRA payments from former employees and their dependents. You may provide a longer grace period if you choose. At the end of the 30-day grace period, we recommend sending a letter to the last known address of the COBRA participant reminding them that a premium payment is missing and COBRA coverage will be terminated if not received shortly. The new COBRA rules require that you send a notice of termination to the last known address of the participant if you do terminate the coverage for nonpayment of premiums.

5. We've told employees to send COBRA payments to an address that no longer exists or no longer receives mail. What do we do?

Go to the post office and fill out a business forwarding card or go to www.usps.com and change your address online.

6. If our employees are no longer working, are they still entitled to health insurance coverage?

Not necessarily. You need to check your plan document (if self-insured) or call the insurance company (if fully-insured) to determine how long employees who are not actively working may remain covered by your health plan. Once this period expires, insurance coverage must be terminated (unless the insurance company or self-insured plan otherwise agrees to waive its eligibility provisions), and a COBRA notice must be sent.

7. Our payroll system has been destroyed and we can't make 401(k) contributions or 401(k) loan repayments. What do we do?

You must make every reasonable effort to make contributions (or loan repayments) to the 401(k) trust as soon as they are deducted from employee pay. If you cannot do so now, you must make these contributions and payments as soon as possible. In the meantime, keep the contributions separate from your general assets, and if possible, set up a trust in favor of the plan at another financial institution, and contribute there. Chances are, in the end you will be required to make up any earnings which have been lost as a result of the delay in contributions or repayments, and you may have to pay a 15% excise tax to IRS. This tax can be waived for good cause shown.

The federal agencies which oversee 401(k) plans and other employee benefit matters recognize that there will be situations in which employers simply cannot comply with all legal requirements. In this respect, the agencies have issued a joint news release stating: "The agencies --- EBSA, Internal Revenue Service and Pension Benefit Guaranty Corporation --- realize that, due to this national disaster, there may be instances when full compliance may not be possible. The guiding principle must be to ensure that appropriate efforts are made to act reasonably, prudently, and in the interest of the workers and their families who rely on their health, pension and other benefits for their physical and economic well-being."

8. The physician network we use is not functioning. How do our employees get health services?

There are several things you can do. First, check with your HMO or insurer to determine if the organization has designated replacements for the providers which are not functioning. In many cases, you may be able to substitute out-of-network providers without employees incurring additional costs. We have been told that a number of insurers are willing to waive out of network penalties, deductibles or co-pays, and in certain cases, are willing to waive plan restrictions such as limitations on prescription refills. If you have a PPO which is lacking critical specialties or providers, contact the PPO providers or administrator to see if they have found replacements or to make sure they are willing to waive any exclusivity agreements which might exist. If you have employees or dependents who need critical prescriptions that cannot be filled in your area, contact the drug manufacturer. Many manufacturers are providing free drugs to those in need. You can also contact FEMA at 1-800-621-3362 (or 202-621-3362) to see what critical medical services are present in your area, and how providers can be contacted.

9. What are our obligations under the HIPAA privacy rules if we are contacted by officials asking for emergency personal health information about one of our employees?

HIPAA privacy restrictions apply only to "covered entities" such as medical providers or employer-sponsored group health plans, and then only in connection with individually identifiable health information. Employers are not covered entities, so if you have medical information in your employment records, it is not subject to HIPAA restrictions. Nevertheless, disclosures should be made only to authorized personnel, and care should be taken even in disclosures to government or other groups such as the Red Cross. Further, you should be careful not to release information to someone until you have properly identified them. We recommend you treat all medical information as confidential and afford it the same protections as those granted by HIPAA in connection with your group health plan.

If you have plan information, you can share it with government officials acting in their official capacity, and with health care providers or officially chartered organizations such as the Red Cross, in certain circumstances. For example, you can share protected health information with providers to help in treatment, or with emergency relief workers to help coordinate services.

In addition, you can share the information with providers or government officials as necessary to locate, identify, or notify family members, guardians or anyone else responsible for an individual's care, of the individual's location, general condition or death. In such case, if at all possible you should get the individual's written or verbal permission to disclose. However, if the person is unconscious or incapacitated, or cannot be located, information can be shared if doing so would be in the person's best interests. In addition, information can be shared with organizations like the Red Cross, which is authorized by law to assist in disaster relief efforts, even without a person's permission, if providing the information is necessary for the relief organization to respond to an emergency.

Finally, information can be disclosed to authorized personnel without permission of the person whose records are being disclosed if disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public.

10. Do we have to continue health coverage for employees who are no longer working?

No. You need to check your plan document (if self-insured) or call the insurance company (if fully-insured) to determine how long employees who are not actively working may remain covered by your health plan. Once this period expires, insurance coverage must be terminated (unless the insurance company or self-insured plan otherwise agrees to waive its eligibility provisions) and a COBRA notice must be sent.

11. Can we continue health coverage for employees who are no longer working?

Not necessarily. You need to check your plan document (if self-insured) or call the insurance company (if fully-insured) to determine how long employees who are not actively working may remain covered by your health plan. Once this period expires, insurance coverage must be terminated (unless the insurance company or self-insured plan otherwise agrees to waive its eligibility provisions) and a COBRA notice must be sent.

12. Is it possible for us to create a charitable trust through which employees can make tax-deductible contributions to assist other employees who suffered losses in the storm?

Yes, it is possible to set up a tax exempt charitable fund to provide immediate help to employees who suffered losses in the storm. Contributions to the charitable fund are tax deductible, and payments to employees are not taxable. Help provided can be short term or long term, and could take the form of grants or loans.

Because such an arrangement is funded by and benefits employees, the fund must be set up with a number of special features to gain tax exempt status. The fund takes advantage of special legislation passed after the 9/11 attack, and the IRS has promised a speedy ruling on all Katrina disaster foundations.

Fisher & Phillips has developed a package for clients that wish to set up a tax exempt fund that can be adopted quickly and efficiently. Please contact any member of the Firm if you are interested.

13. Can our employees donate vacation or paid time off to help other employees in need?

If your plan(s) allow for it, you may donate vacation or paid time off to other employees. Practically, most plans do not allow these types of transfers due to the possibly unfair tax treatment – either the recipient of the donation has taxable income on the value received, or the donor must recognize the value of the gift as taxable income. Either way, the tax consequences are usually unintended, and sometimes come as a surprise.

One way around the tax issue is to adopt a charitable fund (discussed in 12 above), and to structure the vacation or PTO plan so that the value is contributed by the donating employee to the fund, and the recipient employee is not taxed on the proceeds received.

A number of other approaches may be available, depending on the structure of the respective programs and the State in which the employer operates. Absent a charitable fund, each situation must be looked at on its unique facts.

14. What happens to health coverage if employees are not working and unable to pay their share of premiums?

In the normal course of events, health coverage will cease when premium amounts are no longer paid. However, several actions might be taken that would allow coverage to continue. First, the insurer providing the health coverage may voluntarily continue the coverage while the disaster is sorted out and the employer reopens its doors. Alternatively, you may make an arrangement with the insurer providing health coverage to pay the employee's portion of premiums to keep coverage in place, at least temporarily, and possibly until the company can reopen its doors.

Each situation will be different, depending upon the insurer and the relationship between the employer and the insurer. Therefore, each fact situation will have to be individually investigated.

15. Are government programs available to help pay the employee share of health plan premiums?

Currently, there are no specific programs for this purpose.

16. Our 401(k) recordkeeper or bank trustee is not operating. How do employees access their accounts? Where do we make contributions to the plan?

Employers are under a legal requirement to submit funds to the recordkeeper as soon as reasonably possible and no later than the 15^th of the month following the payroll. In this case, if the recordkeeper is not operating, then you should take reasonable steps to segregate the funds in a separate account for the participants. See also Q&A 7 above.

17. Our Form 5500 Annual Report is due to be filed, and we don't have enough information to file it. What do we need to do?

The Department of Labor's Employee Benefits Security Administration (EBSA) has granted an extension of time to annual report Form 5500 filers who cannot file on time because of Katrina. The extension applies to plan administrators or sponsoring employers located in one of the counties or parishes identified as "affected" by FEMA or eligible for relief under the Stafford Disaster Relief and Emergency Assistance Act.

Administrators or employers are eligible for this relief if the Form 5500 filing is due between August 29, 2005 and October 30, 2005. To obtain an extension, check Part I, Box D on the 5500 and attach a statement to the filing entitled "Form 5500 Box D, Hurricane Katrina Disaster Relief Extension," and state that the filer qualifies for an extension under IR-2005-84 or IR-2005-91, depending on where the filer is located. The extension lasts until October 31, although IRS has indicated that it is likely this date will be extended for the hardest-hit areas.

This extension also applies to employers located outside the affected area who are unable to file because they cannot obtain information from service providers, banks or insurance companies whose operations were affected by the hurricane.

18. How will Katrina affect tax filing deadlines like September 15 or September 30? Must employers ask for an extension?

The IRS has already announced tax filing relief programs due to Katrina for the Southeast region. The IRS tax filing relief information is updated and available on the IRS website, www.irs.gov. Tax filing relief was also provided for taxpayers affected by the 9/11 situation.

NATIONAL LABOR RELATIONS ACT

1. My workforce is unionized. Can my company make changes to unionized employees' work schedules or duties in response to Hurricane Katrina?

The National Labor Relations Act (NLRA) imposes on employers the duty to bargain in good faith over mandatory subjects of bargaining such as wages, hours, and terms and conditions of employment. Generally speaking, employers who make unilateral changes to these facets of employment may be subject to unfair labor practice charges that would apply even in emergency situations such as this one, unless your collective bargaining agreement provides otherwise.

Many collective bargaining agreements contain provisions that allow for employer flexibility in determining work assignments, scheduling and layoffs. The first authority for determining your rights and obligations is your own collective bargaining agreement.

2. I have a "force majeure" clause in my contract. Does it cover the damage caused by Hurricane Katrina?

Possibly. A "force majeure" clause is one that dictates your rights and duties in the event of an emergency situation created by an unforeseeable force of nature (or the like). Whether Katrina triggers the force majeure clause in a contract, and the effect of that clause on the provisions of the contract, will vary significantly with each employer.

3. There is no force majeure clause in my contract. Does that mean I still have to abide by all of the contract provisions during the crisis?

The general duty to bargain over changes in contractual terms may be suspended where compelling economic exigencies compel prompt action. The law views "compelling economic exigencies" as extraordinary, unforeseen events having a major economic effect that requires the employer to take immediate action and make a unilateral change.

Although Hurricane Katrina would seem to fit the description of a "compelling economic exigency," realize that its effect will be different for every employer. That is, while it may suspend the duty to bargain for one employer whose only facility was completely destroyed, it will likely not suspend the duty for an employer that has lost significant accounts or contracts as a result of the storm.

In practice, the safest course of action (and the one most likely to avoid future litigation) is to notify the union in all cases, even if you believe that your particular situation fits into the "compelling economic exigency" category.

4. How much notice do I have to give the union before I make a change to my contract?

The law requires employers to give the union "adequate" notice of a proposed change to the collective bargaining agreement, and an opportunity to bargain about that proposed change. There is no "bright line" rule as to how much notice is "adequate." However, where an employer can show a need for a prompt change and time is of the essence, a notice period as short as a couple of days may be considered "adequate" under the circumstances.

5. Because of damage caused by the hurricane, my company must go out of business. Do I have to notify the union before I do this?

An employer has the right to cease operations and go out of business completely without first bargaining with the union over its decision. But, an employer that decides to close its operation must give the union adequate notice of its decision, and bargain over the effects of the decision to close if the union requests bargaining.

6. If I decide to close my business as a result of Hurricane Katrina, how much notice do I have to give to the union?

Again you are required to give the union "adequate" notice of your decision to go out of business. There is no one rule as to how much notice is "adequate" under the circumstances. Depending on the circumstances, as little as a couple of days notice may be considered adequate. Remember that you may still be subject to State and federal laws with respect to plant closure notifications. State and local plant closing laws are discussed in more detail in these materials.

7. What is my bargaining obligation after I've made the decision to close my business and I notify the union of my decision to close?

Once the decision has been made to close a business and the union has been adequately notified, you are required to bargain over the effects of the closure on employees if the union requests such bargaining. By way of example, these "effects" can include: severance payments, letters of recommendation, vacation payouts and continuation of health insurance benefits. Remember that your collective bargaining agreement may already provide for the continuation of some of these benefits in a plant closure situation.

8. What happens if I close my business on the Gulf Coast altogether, and then reopen a brand new facility elsewhere? Do I still have to bargain with the Union?

Reopening the same or similar business at a later date could result in a duty to bargain with the new employees. If a company uses a business shutdown in order to avoid bargaining obligations. The law imposes a bargaining obligation on the new employer on the theory that it is the "alter ego" of the previous employer.

While union avoidance is likely not the motivation of an employer that decides to close its operation due to hurricane damage, the result could be the same. If the subsequent employer has the same or similar ownership, management, business objective, customers, and supervision as the prior entity, the law will likely impose a renewed duty to bargain with the previous union and could also require the new company to follow the terms of the previous collective bargaining agreement.

Many contracts have specific provisions that cover situations in which the employer relocates its business. In that case, the provisions of the collective bargaining agreement would govern.

9. I would like to move the work that used to be done at my Gulf Coast facility to one of my other existing facilities. Do I have to bargain with the union about that?

An employer has the right to close part of its business and transfer work elsewhere without bargaining with the union over the decision to do so. This decision must be based on a legitimate economic justification and not on a desire to replace union employees with non-union employees.

As with a complete shutdown, an employer that decides to close part of its operation and transfer work elsewhere must give adequate notice to the union of its decision. Following proper notice, the union has the right to demand that the company bargain over the effects of the decision to close a facility and transfer the work. Bargaining over the effects of the decision to close may include discussions about topics such as severance pay, continuation of benefits, and the right to fill the jobs in the new location. Note also that your collective bargaining agreement might address a plant closure/transfer of work situation.

10. I have a case that is currently pending before Region 15 in New Orleans. What will happen to it?

The National Labor Relations Board Region 15 offices in New Orleans are closed indefinitely. All of the cases pending in that office have been transferred to the Region 26 offices in Memphis, Tennessee. Although the cases will be handled by Region 26 until the Region 15 offices re-open, the cases are likely to be backlogged for at least a period of time.

WORKERS' COMPENSATION

1. My employees have physical and psychological injuries from exposure to dangerous substances, or from coming into contact with dead bodies in the course of their work. Will they be limited to the recovery of workers' compensation, or can they sue the company for damages in court?

Generally, under State law, your employees will be limited to workers' compensation remedies if they are injured physically as a result of an accident occurring in the course and scope of their job duties. If their physical injuries result from deliberate or intentional (rather than accidental) conduct, however, such employees will likely have the right to sue you in court for all of their actual losses (compensatory damages), including mental distress damages, as well as for punitive damages. Beyond this, there are significant differences in the laws of the States that were affected by Hurricane Katrina.

Mississippi courts broadly interpret the scope of the workers' compensation laws to cover not only negligent (accidental or careless) behavior, but also reckless or grossly negligent conduct. Thus, in Mississippi, it is likely that employees injured as a result of conduct which is not the result of a deliberate act will be limited to receiving only workers' compensation benefits.

In Alabama, employees who are seeking to recover for psychological injuries (not physical injuries) are allowed to file separate lawsuits outside of workers' compensation against their employers. In such suits, they can recover for mental distress and punitive damages.

In Louisiana as well, employers must be extremely careful. There, an employee who has suffered emotional distress as a result of the negligence of his employer can sue in court for actual and punitive damages even if the employee has not suffered any physical injury so long as the court does not conclude that the claim was "spurious," i.e. falsified and without evidentiary support.

2. How can my company avoid being sued for workplace injuries in court (for damages exceeding workers' compensation benefits)?

The bottom line for all employers seeking to avoid such claims, especially when employees are going to be exposed to extremely unpleasant or potentially dangerous or shocking circumstances, is to use "reasonable care" in making and supervising all such job assignments. Plan such work carefully to protect your employees from any physical danger or psychologically shocking circumstances which you can possibly anticipate in the course of their duties. The more "careless" or "reckless" your actions appear to be in assigning or supervising such work, the more likely it is that a court in any State will allow an employee to sue for damages in court, rather than be limited to workers' compensation.

3. Should I ask for volunteers when assigning unpleasant or potentially dangerous duties?

Yes, we recommend that employers ask for volunteers to perform such duties when they are required. Warn volunteers in detail about any dangerous or unpleasant circumstances they can expect, and require them to execute full releases, approved by counsel in advance, from any liability which may result from their decision to participate. Any employee who is unwilling to sign a release should be assigned to other duties.

4. What else can I do to minimize the likelihood that my company will be sued for a workplace injury?

Give employees who do agree to perform such duties any and all protective clothing and equipment which is necessary for safety or reasonably desirable in the circumstances. Minimal compliance with the provisions of OSHA is only a starting point for protection from employee lawsuits. Every reasonable step should be taken to minimize the likelihood that employees who agree to perform "hurricane" duties are protected from potential psychological harm as well as physical harm. Finally, treat your employees even better than you would expect to be treated in the circumstances: never let them think you do not care about their safety or well-being.

5. How can I reduce the risk of physical injury or emotional distress to those performing hurricane duty under these conditions?

As a general matter, you must continue to comply with OSHA standards. OSHA has posted information on its website regarding Cleanup and Recovery from Hurricanes. Fact sheets are available (in English and Spanish) and dangers associated with recovery efforts. Please visit www.osha.gov to obtain a printout of that information.

Beyond those regulations, you should exercise reasonable care to become informed about the risks to the workers and take reasonable steps to protect the workers from those identified risks. The primary step is to inform the workers of the potential physical and psychological risks of working in the area.

In addition, you should

• maintain a list of workers, the tasks to be performed and the location of the workers;
• provide safety equipment appropriate to the tasks that the workers are assigned to complete; and,
• make sure that anyone who is to work in a flooded area has had a current tetanus shot.

You should also have workers sign a statement that they have been made aware of the risks and that they have received safety equipment, if it is required for their particular tasks.

6. Are "volunteers" considered employees?

In determining whether a worker is a true volunteer, most States primarily consider whether the person is being compensated or will otherwise receive benefits. Louisiana has a broader definition for employees that includes anyone rendering service for another. Like most States, Louisiana, Alabama, and Mississippi will strongly consider the amount of control exercised by the employer over the workers and the power to dismiss the workers when determining whether a worker is an employee. If you are compensating so-called "volunteer" workers and exercising control over their work, then it is likely that the State will consider them to be employees. The more compensation you provide and the more control you exercise, the more likely it is that they will be considered employees.

7. How do I handle true volunteers?

If a worker is a volunteer, he or she is not considered an employee and therefore, is not covered by workers compensation. For this reason, you need to take some preventive steps before accepting volunteers:

• Maintain a list of the people volunteering for you and require each volunteer to sign a comprehensive release;
• the release should identify the potential physical and psychological risks that the volunteer may encounter; and,
• no one should be allowed to volunteer unless he or she has signed a release.

IMMIGRATION LAW

1. How do I complete I-9 forms for persons who are displaced and have no documents?

On Tuesday, September 6, the Department of Homeland Security issued a press release announcing that it would not penalize employers for hiring persons who do not have I-9 documents because they were displaced as a result of Hurricane Katrina and its aftermath. The DHS announcement states that the enforcement grace period will last for 45 days. The press release does not provide guidance about how to complete the form or what to do at the end of the 45 day period if the individual still lacks documents.

2. What happens to employees on temporary visas who cannot work?

Although there is no guidance from DHS yet, presumably these workers would be treated as if they were on an approved, unpaid leave and therefore would not be out-of-status for failing to work.

3. Must I pay an H-1b alien the salary listed in the petition even if that person cannot now work?

Again, there is no advice from DHS, but presumably you could put such a person on an unpaid leave of absence until he or she is able to work again.

4. What happens to cases that were pending in Citizenship and Immigration Services Offices in the affected areas?

There is no indication yet from DHS about what will happen to pending cases. This may be because CIS officials have not been able to assess the damage firsthand. We suspect that all cases that were pending in affected offices will need to be re-filed. This may cause substantial delays for work permits, travel documents, and permanent residence interviews.

PLANT CLOSING LAWS

1. Do we have any liability under the WARN Act if we are forced to suspend operations without prior notice on account of the storm and its aftermath?

Probably not, so long as you take steps to issue appropriate notice going forward. The federal WARN Act does impose a notice obligation on covered employers (those with 100 or more full-time employees) who implement a "plant closing" or "mass layoff" in certain situations, even when they are forced to do so for economic reasons. It is important to keep in mind that these quoted terms are defined extensively under WARN's regulations, and that they are not intended to cover every single layoff or plant closing. As neither Louisiana, Alabama nor Mississippi have enacted separate notice requirements at the State level, the federal law would govern all such obligations for employers operating in those two States.

Generally speaking, employers must provide at least 60 calendar days of notice prior to any covered plant closing or mass layoff. Fortunately, even in cases where its notice requirements would otherwise apply, the WARN Act provides a specific exception "if the plant closing or mass layoff is due to any form of natural disaster...." This provision would clearly apply to Hurricane Katrina. To qualify for the exception, you must be able to show that the plant closing or mass layoff was a direct result of the natural disaster. Businesses that are indirectly impacted may still benefit from a similar provision, known as the "unforeseeable business circumstances" exception.

This exemption is a limited one, in that an employer relying upon it must still provide "as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period." In other words, once you are in a position to evaluate the immediate impact of the disaster upon your workforce, you must then provide specific notice to "affected employees," along with a statement explaining the failure to provide more extensive notice, which in this case would obviously be tied to the unforeseeable nature of the Hurricane and its aftermath.

Any such notice must contain the following information: 1) Whether the planned action is expected to be permanent or temporary, and if a plant is being closed, a statement to that effect; 2) the expected date the plant closing or mass layoff will commence, as well as the anticipated date of layoff or termination (within a 2-week window); 3) an indication as to whether bumping rights exist; and, 4) the name and phone number of a company official who can be reached for further information. For employees residing in the immediate path of the hurricane, any attempt to notify them will be difficult at best, but the law suggests that notice may be effectuated through written correspondence to their last known address. Of course, many of these facts may not yet be known, in which case the Department of Labor takes the position that "notice need only contain such information as is available at the time the notice is given."

2. What if my workforce is unionized?

In the case of union-represented employees, notice is far simpler, as it need only be served upon the collective bargaining representative, containing the following information: 1) the name and address of the work site where the planned action will occur, and the name and phone number of a company official to be contacted for further information; 2) whether the planned action is expected to be permanent or temporary and, if a plant is to be closed, a statement to that effect; 3) the expected date of first separation and anticipated schedule if layoffs are to occur on more than one date (within a 2-week window); and, 4) the job titles to be affected and names of workers currently holding those positions.

In either event, notice must also be delivered simultaneously to the State dislocated worker unit, and to the chief elected official of the local municipality in which the affected facility resides. Both notices must contain the following information: 1) the name and address of the work site where the planned action will occur, and the name and phone number for a company official to be contacted for further information; 2) whether the planned action is expected to be permanent or temporary, and, if a plant is to be closed, a statement to that effect; 3) the expected date of first separation and anticipated schedule if layoffs are to occur on more than one date (within a 2-week window); 4) the job titles of positions to be affected and names of workers currently holding those positions; and, 5) the name of each union representing affected employees and the name and address of the union's chief elected officer.

3. Will the government really enforce this law in light of the catastrophe?

In the aftermath of Hurricane Katrina, the extent to which the Department of Labor will focus upon enforcement of the WARN Act remains to be seen. Nonetheless, the law provides stiff penalties for non-compliance, including up to 60 days of back pay and benefits, along with a civil penalty of up to $500 per day. More importantly, it provides for a private cause of action in federal court, suggesting that employers may soon be responding to lawsuits arising under the WARN Act regardless of the enforcing agency's official position.

Consequently, we advise that you evaluate your current situations to ascertain whether the most recent disaster has triggered a WARN Act qualifying event in your organization. If so, provide as much notice to affected employees as is practicable under the circumstances. When in doubt, the best approach is to work through counsel to arrive at a safe, but practical solution to a potentially thorny situation for many employers that are impacted by the disaster, either directly or indirectly.

For further information on these topics or other employment-related disaster issues, contact any office of the Firm.

New Orleans Office:
Mitchell, Mike

Atlanta Office:
Barresi, Jenna
Bernstein, Steve
Brown, Caroline
Christenson, Bob
Gamble, John
Herman, Brian
Mavity, Howard
McGoldrick, Lawrence
Mendoza, Clancy
Neely, Karen
Sullenberger, Doug
Whitlock, Dave
Woodling, Ruth
Zichella, Rachael

Ft. Lauderdale Office:
Quinn, Candace

This list of frequently asked questions has been prepared by the law firm of Fisher & Phillips LLP in response to the Hurricane Katrina disaster. In it we address many employment-related issues facing employers in the wake of this catastrophe.

As with any brief summary of complex issues, the information provided here is not intended to serve as legal advice, and is no substitute for consultation with an experienced attorney. Most situations are highly fact specific. You should consult with counsel before taking action in any area that could result in legal liability.