The guys discuss the massive floods in Houston, how employers responded, and why one meteorologist became a local hero. They also discuss the steps businesses should take in preparing for storms outside the workplace.
NASIR: Welcome to our podcast where we cover business in the news and add our legal twist.
My name is Nasir Pasha.
MATT: And I’m Matt Staub.
NASIR: And I am all dry from the weather. I think that’s the first question. Everything is safe and sound in Houston, Texas.
MATT: I mean, I didn’t hear about this, I don’t think, until Tuesday? Monday?
NASIR: Well, Monday is when it happened.
MATT: Okay, it must have been Tuesday.
NASIR: Yeah. So, what happened last Monday which would have been last, last Monday when this episode comes out? Basically, overnight – and I was kind of half-awake – it was just raining like crazy all night. Of course, I’m not in ivory tower on the eighth floor of our building so I wasn’t really too concerned about anything in my own selfishness. But I knew something was going on and I woke up at like 4:30 in the morning, checking my phone, to see if there’s floods or whatever. And then, I think, at 5:00 or 6:00, the weather warning goes off on your phone and so forth. But, overnight, things just started to flood like crazy and people woke up to flooded homes, flooded streets. You see, Houston, just picture a huge area that’s completely flat and then cover it with cement and then pour rain on it. That’s Houston, basically. Of course, it’s going to flood. So, it’s been kind of a rough week and so we thought we’d cover some of the implications of that flooding.
MATT: Well, yeah, that’s what I was going to ask because I’ve never been there. Is it like San Diego that the city was not built for any sort of rain? I mean, it would never even rain that long in San Diego but the drainage system in San Diego is so poor that it just can’t.
NASIR: That’s true. In San Diego, if it rains pretty hard, I remember in Mission Valley, there would be spots where it’d just be impassable. But you’re right, it’s because San Diego is not built for that and it hardly gets any rain. When it does rain, the ocean water or the sewage water goes into the ocean and you can’t swim for X number of weeks, et cetera. But, in Houston, I mean, first of all, it’s basically swampland. And so, to answer your question, it’s supposed to be built for rain. The problem is it’s just flat. The only thing that they can do, for example, in Galveston, what they did is they literally – this was decades ago – Galveston is a beach city close to Houston on the gulf and basically they raised everything, like, ten feet – meaning the buildings – and so, that way, when there’s a surge of water in the ocean, you know, it doesn’t flood every single time. That’s really the only thing that they do here. Basically, when they build new buildings, they make sure it has a run-off and what is it called? A reserve?
NASIR: Not a moat. Like, depending upon the size of the lot, they dig below and then they build up so that the water has somewhere to go. Most of the time, that works. But, of course, all of these old neighborhoods which, frankly, tend to be the lower income areas, are the ones that get affected most when these things happen.
MATT: How long did this happen for? Just one day or was it multiple days?
NASIR: Sunday night and it was basically flood waters that would not recede until the next day but then, also, Tuesday, there was more rain. On Wednesday, there was more rain. That kind of exasperated it a little bit. But the worst of the worst was on Monday. I think a total of eight or so people have passed on most of those on Monday, I believe.
MATT: Yeah, that’s crazy. I mean, the reason I ask is what we’re going to talk about today is kind of the employer response – maybe how employers in Houston responded and how they should respond and kind of this vigilante meteorologist that stepped up in the Houston area. If you think about it, especially in a spot like Houston where it’s just pretty much hot all the time for the most part.
NASIR: Well, in the summer, I suppose, yeah, it’s hot and it’s humid.
MATT: Yeah. I mean, there’s probably not too much that meteorologists can really get that excited about.
NASIR: I suppose, but it’s all relative. If you compare it to San Diego, the meteorologists there, they barely have a job there. We do get some weather here.
MATT: Yeah, okay.
So, the rain you’re talking about, it caused pretty severe flooding. Like you said, there’s been multiple people that, you know, just fatalities that happened as a result. And so, it caused an issue because, a business obviously is going to be open on Monday, what are they supposed to do? If you’re a business owner and you have employees, do you shut down shop for the day? Do you tell your employees they don’t come in today? Do you tell them, “Don’t come in unless you’re able to”?
NASIR: Unless you’re able to.
MATT: Do you just say, “I don’t care, you have to come in no matter what”?
NASIR: Or you’re fired, basically.
MATT: Yeah, or I guess that’s probably worst cases.
NASIR: Well, I mean, if you’re giving them a choice, for example, one of our employees, Logan – well, at least he told me – I didn’t actually check but he told me he couldn’t even, I think it was the roads were impassable. His house was safe – leaving it would have been a problem. And so, I guess I do trust him but, now that I think about it, I’m going to look into that later.
MATT: Going to drive by where he lives later.
NASIR: Actually, I’m going to interview his neighbors and things like that.
MATT: Well, that’s typically how it happens. It’s usually the actual physical spot you’re living at. Your residence isn’t the issue. It’s more roads are blocked off and you can’t drive over and you’re going to start hydroplaning or whatever and you just can’t make it.
NASIR: Again, you know, people that don’t live in the area just may not get it. You have to understand that, even if it rains hard for a day – which happens on occasion, at least once or twice a year – the streets flood in general and they usually recede after thirty minutes. I remember one time, when we first moved here, my wife and I went to see a movie and then, when we got out, literally, the streets were like a river. It was maybe inches of a river but there was just nowhere for the water to go. And so, I’m just trying to demonstrate that it doesn’t take much rain to make a difference. Now, here, we’re talking about a foot overnight and, of course, we have rivers that overflow and dams that have to release their water and so forth.
MATT: When that happened, it would have been nice to have this movie superhero meteorologist who tried to save the day here on Monday. I guess, at some point – and I hope I get his name correct – Mike Iscovitz?
NASIR: Iscovitz or Iscovitz? I don’t know.
NASIR: I’ll ask him later.
MATT: Okay. He somehow caught wind of employers forcing their employees to show up to work even if it wasn’t really feasible and I guess possibly threatening – you know, firing them if they didn’t show to work. And so, he took charge and what he did was basically go on air and say, “If your employer is doing this, let us know and we’re going to go after these people.” I don’t know exactly what the plan of attack was.
NASIR: I think he said we’re going to basically call them out on air and stuff like that.
NASIR: The next day, he kind of backpedaled a little bit from that – probably because I don’t know if his producers were like, “I don’t know if you guys should be saying that. Some of these businesses might be our sponsors.” Who knows? Also, he probably looked into the legality of it and he started focusing on Judge Emmett who basically is the person who runs the county here in Houston and also the mayor. Basically saying to them that they’re the ones that need to focus on communicating to employers that they need to take it easy on their employees who are in shelters or who can’t make it to work or have been affected by the flood somehow.
MATT: Yeah, I think that’s kind of what happened here. At some point, he talked to Judge Emmett, I guess, and basically said, as you would expect, Texas is an at-will state so that means the employer can pretty much terminate the employee for any reason at any time, and this is something we’ve said many times – what you legally can do and what you should do are obviously two different. I mean, I think, in this instance, it would be pretty ridiculous for an employer to fire an employee. I mean, how often is this going to happen in Houston? You’ve lived there a few years. How often has it happened?
NASIR: Well, I mean, it’s a good question because, I mean, I think they’re considering this one of these hundred-year floods but we just had a flood like a year ago and so the sad story is some of these homes that were affected back in the Memorial Day flood last year were affected again right after they got it fixed.
So, in theory, once a year but hopefully not. I don’t think it typically happens that often. I would say, since I’ve been here, once a year there is a significant amount of rain that does affect things for about a few hours or so.
MATT: Houston maybe not as big an issue. I’m just going to group it all together in general as a storm. I know we’ve talked about this before. Other areas, particularly in northeast or I guess anywhere kind of north on the border, in the winter time, you’re going to have snow and I don’t think they have the issues of rain but there’s many times in the winter where snow can affect the ability to travel.
MATT: That’s worse than rain in my opinion by a lot because the roads get all iced over. With water, it just gets flooded. There’s a couple of questions at this – (1) Can you require these employees to show up in these instances of flooding or other storms? (2) If you’re not requiring them to come in, do you still have to pay them?
NASIR: Good questions. By the way, just to think about a couple of other things, this has happened in San Diego, too. We’ve had power outages in San Diego. We’ve had fires all throughout California. Any kind of natural disaster, I think everyone’s experienced it in their home town at least once where everything is shut down. Even the county commissioner or the mayor or the governor is saying, “It is not safe to be on the streets. Stay in your homes and we’re advising only essential personnel, et cetera.” And so, the question I think that Matt’s posing and that’s what happened here. They were encouraging everyone to stay off the roads. They didn’t say essential personnel only but they said encourage everyone to stay off the roads. Now, what does that mean now? As an employer, if I wat my employee to come to work, can I make them do it? The answer is – survey says?
MATT: Well, I mean, I think you kind of hit on the point. If the city – or I guess possibly even statewide – if they put out a ban on travel, if the government comes out and says that, then you’re not going to be able to require them to come in. I guess, otherwise, if it’s just more of a possibility of there being an issue then, if they want, they can still have the employees come in to work that day.
NASIR: That’s pretty much it. I mean, as much as law protects employees in different states – including Texas – from a federal perspective, there’s not a lot of specific law when it comes to this type of showing up to work weather-related issues. The general understanding is that, okay, at-will relationship which basically pretty much all the states are at-will employment – except there are some exceptions to that and we can kind of get into that later – but, generally, in at-will employment, you can fire them for any reason except a so-called illegal reason and one of those illegal reasons is not forcing your employee to come show up to work even though the city is in disarray from floods.
MATT: Yeah, exactly. I mean, that’s basically kind of what the meteorologist came around on and said and what Judge Emmett had told him and what we said many times. Just because you can fire them doesn’t mean you should but you can. And so, most employees work inside. It does change a little bit if there’s a job that you have to do outside – like construction, you have to operate a crane and things like that.
NASIR: Yeah. General OSHA standards are going to apply, of course. If it’s unsafe to work, then that’s a little more obvious – lightning, et cetera. Obviously, if you’re in the middle of water, operating a crane, I think that’s dangerous.
MATT: Yeah, exactly. I mentioned the thing about whether they have to get paid or not. To me, that’s not as interesting of a topic. To me, what’s kind of advanced down the line here in that you’re requiring your employees to show up to work. Let’s say, in Houston, a week ago or however long ago it was now, you have to require the employees to come into work, that’s the bigger legal issue to me because, now, the employer is liable. You have negligence claims that arise. I don’t know if any of the eight people that died had anything to do with trying to get to work – probably not – but let’s say there was some sort of issue there.
NASIR: No, there was.
MATT: A car crash or something.
NASIR: You know why? Because what happened and what’s not too uncommon, unfortunately, is that there’ll be like a dip in the road and it’ll be night time or what-have-you and it’s flooded and you’re just driving at normal and they haven’t blocked it off yet and the car floods and then the person can’t get out quick enough or they can’t swim or whatever and they drown. That’s part of the reasons why there have been a few deaths. On top of that, there was actually one death that I know of that the person actually drove around a barrier and said, “Okay, maybe I can make it,” because that’s what often happens. People are like, “Okay, I can make it through,” and they don’t realize how deep it is and then, suddenly, their car is floating away and then fills with water and then, you know, you know the rest of the story.
MATT: Yeah. I mean, that’s one way you can look at it as an employer. Just because I can make these employees come in, should I? Do I want to require them to come and have them hate me? That’s one thing. I mean, the actual serious liability issues as well for the employees that are coming in – whether they’d be held liable for that, who knows? But, I mean, it’s at least going to be things they’d have to deal with.
NASIR: We’ve heard that argument before that, okay, if you force them…
MATT: It’s an argument.
NASIR: Yeah. I mean, if you force them to work, then they’re going to argue that there any accidents or any damages that occurred to them is somehow the employer’s fault. Like you mentioned, it’s an argument. Whether it’s a great argument or not is a different issue.
NASIR: But here’s the problem though and I think there is a gap in the laws because, if you’re in an office setting, many a times, you can afford to close for a day. An employer is going to make that decision for those reasons – again, you don’t want your employees hating you the next day – which is why I didn’t mind Logan, even though he was probably lying to me about his flood risk, wanted to stay home and probably play video games all day. Even though that was the case, I didn’t mind him not coming in because, you know, I mean, the whole city was shut down. But, in cases where, you know, you have restaurants or are working with low-income employees, some of those may be a little bit more strict and may need to remain open for whatever reason because I saw restaurants that evening open. A lot of them were closed but I can imagine some of those restaurants that want to remain open to capitalize on the business but their employees aren’t showing up. Who are the employees that are most affected? Probably are the ones in those low-income areas that have been most affected by the flood. If they don’t show up, they may not be able to work again if the employer sees fit.
MATT: Yeah, exactly. I think I’ve mentioned this before but, in the old days when I used to do pizza deliveries, I mean, that was the worst because what are you going to do? Let’s say there’s bad weather – typically, for me, it would be snow or I guess heavy rain.
NASIR: That’s when people order, right?
MATT: Yeah, you don’t want to go out into that. You’re going to make this kid do it. And so, that was like the worst thing ever. I worked there a few years. I can only remember a handful of times where we just refused to do deliveries.
NASIR: That’s interesting too from any kind of delivery aspect. Any kind of situation where you have drivers, there are OSHA standards when it comes to that too. Of course, if the roads are too dangerous for any reason, whether it requires a mayor or governor to declare a state of emergency or not, there could still be some responsibility on the employer to make sure that those safety standards are met.
MATT: Yeah. In that situation, the employer should be a lot more worried about the situation of negligence. It’s a big difference between forcing me to come into work when I don’t want to and me getting in a car accident commuting.
NASIR: That’s right.
MATT: But, when I’m being forced into doing a delivery during work, I mean…
NASIR: Yeah, and that’s important. There’s a big legal distinction between commuting to work and working. For example, when you get into an accident on the way or from work, your employer may not be responsible for any damages that you cause. But, if you are doing company business and you get into an accident, cause damage, then your employer may be responsible and is probably responsible and that’s why the employer is required to have or should have insurance for their employees – that automobile insurance for that.
MATT: But, if there’s a frolicking detour while I’m doing the delivery…
NASIR: No, we’re not going to talk about that. Those are exceptions.
But, going back to that, generally, you can fire anybody for any legal reason. Some states have public policy exemptions. For example, you know, you can’t fire somebody because they filed a complaint against you or whistleblew against you or whatever, right? Or you can’t fire them for being a certain race. And then, there’s also these other smaller exceptions that can be construed. There’s this implied covenant of good faith and fair dealing. California has that. Employment law attorneys that represent employees would argue that, even if you have a contract that says it’s at-will, there’s still a covenant in all contracts to act in good faith. And so, if you just kind of fire them for an arbitrary reason without just cause, then that could be a breach of a contract and so forth. There are some subtleties to it but, generally, you can fire somebody for any reason – any other reason than that – including for not showing up to work even if there’s dangerous hazardous conditions out there.
Now, even though that’s the general rule, don’t take that to heart because there may be some exceptions in your local neighborhood and the circumstances may change and the facts may change that may make that problematic for you.
MATT: I don’t know if there’s neighborhood by neighborhood law. There’s local laws. You know, federal, state, local…
NASIR: And neighborhood.
NASIR: Like Sesame Street has its own law. It’s called Sesame Street Law.
MATT: I guess, technically, there are neighborhoods that have CCNRs but I don’t think it has to do with this. Let me just hit on, I mentioned this before and kind of skipped over it because it was boring but, for non-exempt employees, it’s usually going to be your hourly rate. I mean, it’s pretty straightforward that, if they don’t work, they don’t get paid. Exempt, you know, they’re going to get paid – well, they’re going to get paid and then, I guess, exempt employees that are told to come in or that choose not to come in, they might be forced to take some sort of leave, something to that effect. But, for the most part, you know, general rule, they’re going to end up getting paid, one way or another, I guess.
NASIR: For exempt employees, also, it depends how long they’re out, too. If it’s just a day, then you just pay them for that same pay period.
That’s the thing, just as a kind of reminder for employers that do have to make this decision, obviously, the best answer is to give your employees a break. I mean, I’ve seen stories where employees are being given a hard time – some are still in shelters because of the flood and so forth. What are they supposed to do? They may have lost their homes and are in a bad place. Obviously, that’s what we should all be doing but keep in mind that a lot of people – especially business owners and for us even – if I can’t go to the office, it’s not that big of a deal because, if I have a laptop and a phone and power, that’s all I need, right? We have that luxury. But there are a lot of people that don’t have that luxury in a non-business setting or non-office environment necessarily.
MATT: Power can get knocked out no matter where.
NASIR: Well, you can require your employees to get generators and also satellite internet.
MATT: The last time the power went out for a prolonged period in San Diego, I luckily somehow lived in a high-rise that elevators were power-generated.
NASIR: That’s good.
MATT: Because I was on the 15th floor so it would have been a nice hike up those stairs.
MATT: One of the few buildings that had elevators powered by a back-up generator. I was fortunate.
NASIR: Let’s see. General takeaway, we should give kudos to this meteorologist. I mean, it’s something that I thought of but a lot of non-legal or non-business owners may not think of the implications and he recognized that. He even mentioned all the schools were cancelled closed that day and, of course, that can be problematic for those that kind of depend upon their kids being in school during the day.
MATT: Other than the stuff that we’ve already mentioned, one thing we have which I think is a big takeaway, I mean, it’s probably helpful for any area but in areas that are prone to some sort of storms or things like this, probably something you want to have, I would define it as best as you can, as specifically as you can in the employee handbook on what constitutes everything. Like, when are people going to be allowed to stay home? Just all the rules that go into that. I think defining that puts the employer at an advantage from the beginning.
NASIR: Yeah, if you follow it.
MATT: Yeah, of course.
NASIR: At the same time, if you’re very liberal about this sort of stuff, then just implement it that way and, on a case by case, this is fine. You just have to be careful about being a little bit consistent in a sense that you’re consistent to individuals and they don’t feel discriminated against because maybe they live in a certain neighborhood or they may be of a certain disposition regarding, you know, the circumstances of how they get to work or whatever. And so, just be careful about that. But, yeah, I mean, employment manuals are a great tool for that.
NASIR: A lot of people had to force themselves to take vacation pay. That’s not uncommon to do. Or they just don’t get paid for that day. It just depends upon their employment policy.
MATT: What a fun vacation.
NASIR: I know. My wife had to do that, too.
MATT: Where did you guys go?
NASIR: Oh, it was excellent. We did go out to dinner that night for carry-out. It was one of the only restaurants that was out. That’s basically what we did.
NASIR: Did I show you the pictures of our parking lot outside?
MATT: No, I didn’t see it.
NASIR: I’ll send it to you. Our parking garage, the first floor is basically a bucket. It might as well be an empty pool. And so, when it rains, it becomes a pool. Every time it floods, every year or so, there’s about one or two cars that end up, they park their car there overnight or long-term and it ends up getting ruined.
MATT: There was an obvious phrase for this episode but I’m not going to say it because I feel like it gets overblown.
NASIR: What is it?
MATT: It’s a Houston-related phrase. The only Houston-related phrase there is, catchphrase.
NASIR: Oh. “Houston, we have a problem.”
MATT: Actually, all of the stories I read, I didn’t see it once. I assumed that would be like the go-to headline.
NASIR: Yeah, I don’t think you can use it in Houston. Like, it had to be a federal or a national news story in order to use that because, if you use it in Houston, it’d be like, over and over again, you’d have to use it. I’m going to start using that.
NASIR: All right. Well, that’s our show!
MATT: Keep it sound and keep it smart and keep it safe.
NASIR: Hey, you can’t add that.