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South Florida’s labor and employment lawyers got some unexpected business due to Hurricane Frances and Miami-Dade State Attorney Katherine Fernandez Rundle. As the storm threatened South Florida over the weekend, Rundle and County Mayor Alex Penelas publicly warned employers that they could face criminal prosecution for forcing employees to work during Hurricane Frances. The warnings prompted nervous employers to call their attorneys. Stunned employers wanted to know whether they really could be arrested for requiring employees to come to work during the storm. The employers — whom lawyers interviewed for this article declined to identify — were in the retail, hospitality and waste management industries. Rundle’s comments, broadcast on every South Florida television station, rattled employers and may have achieved the result she was aiming for. There have been no reports thus far of anyone injured or killed driving to work. “If that’s a result, we’re thrilled,” said Rundle, a Democrat who is running for re-election in what is expected to be a tough three-way contest against former Broward County prosecutor Alberto Milian and lawyer Gary Rosenberg. “If an accident or injury occurred, the employer could be culpably negligent.” The issue also came up during Hurricane Charley last month. Two Largo city employees were fired for refusing to go to work the day Charley was expected to hit. One employee, a first-responder, said he had to take care of his ailing, 81-year-old mother. In the wake of that controversy, some critics have called for Largo to revise its written policies about employees’ duties during a hurricane. The issue has prompted talk of possible local or state legislation, especially since another hurricane � Ivan — made its way into the Caribbean Tuesday. In Broward County, a spokesman for State Attorney Michael Satz said his office received no complaints from Broward residents about being forced to go to work during the hurricane. Still, Satz had his staff research the issue. “If someone ordered to work was seriously injured, it would be possible to argue in civil court, and perhaps even in criminal court, that the employer was culpably negligent,” said Satz spokesman Ron Ishoy. But, Ishoy said, “our prosecutors could find no law that would directly apply to not heeding a governmental advisory.” “It’s a difficult call to make,” said James Bramnick, a management-side labor and employment lawyer at Akerman Senterfitt in Miami. “There’s been talk and speculation in the last couple days of having a local law that spells these things out. They may want to issue something in the future.” Eric Gabrielle, a labor and employment lawyer at Stearns Weaver Miller Weissler Alhadeff & Sitterson in Fort Lauderdale, had the same thought. “I will bet you in the next Florida legislative session, someone will propose a bill about what employers and employees are required to do in the case of a hurricane.” One Broward business handled the dilemma in the following way: Conca D’Oro, an Italian restaurant in downtown Hollywood, was one of the few restaurants to stay open throughout Hurricane Frances. Assistant manager Enzo Ceraso said his employees were asked to come in on a voluntary basis and none were told they’d be fired if they refused. Half the employees — six waitresses, four cooks, three managers and one pizza man — came to work, and the restaurant did three times its normal basis. “We told people, if you feel scared, don’t come in,” said Ceraso. “We don’t force anyone to work, and nobody got fired.” While civil lawsuits have been filed against employers under the Occupational Safety and Health Act of 1970 for forcing employees to work in unsafe conditions, criminal charges are rare, say labor and employment lawyers. CIVIL LIABILITY MORE LIKELY Miami-Dade officials first turned their attention to the issue after hundreds of employees called an emergency county hotline Saturday complaining that employers were forcing them to drive to work in the midst of a hurricane warning. Penelas said repeatedly at televised news conferences that the roads were dangerous and residents should stay indoors. Hotline and county employees urged employers to “be reasonable with your employees,” said Lynn Norman, spokeswoman for Penelas. In emergency situations, the mayor has the power to order a curfew or even order all businesses to close. But with the storm veering north and moving “slow as a snail,” Penelas stopped short of such actions, Norman said. But Rundle’s office did research and discovered that businesses could be criminally prosecuted for culpable negligence for forcing employees to work if they become injured or killed on the road. Under Florida Statute 784.05, businesses owners and managers could be charged with first-degree or second-degree misdemeanors or even — under Florida Statute 782.07 — manslaughter. In an interview Tuesday, Rundle said “a lot of factors would have to go into that. Civil liability is probably more likely. But as state attorney, I needed to let people know that there are criminal laws.” RUNDLE TOO VAGUE? Bill Talbert, president and chief executive of the Greater Miami Convention & Visitors Bureau, said the issue started with him. “Calls started coming into the county’s call center from hospitality employees,” he explained. “I immediately went on the air Saturday and said it was wrong to force people to go to work.” Backing up that message, labor lawyers staffing the county hotline gave the same advice to callers, Rundle said. Employers took notice. Ramnick said he received a number of worried phone calls from employer clients who saw Rundle’s televised warnings. So did other employment defense lawyers. But some of management-side labor lawyers expressed surprise and criticism about Rundle’s public comments last week. “When you have politicians running for office, they’re going to be holding press conferences and addressing public issues,” said Joseph Fleming, a labor and employment attorney at Greenberg Traurig in Miami. He particularly criticized Rundle for saying she would prosecute businesses that force employees to go to work during the hurricane, then amending her position that employers would only be prosecuted for forcing “nonessential personnel” to come to work. Fleming argued that was much too vague. “They didn’t explain what was necessary and essential,” Fleming said. “They could have shut down the government.” Aaron Reed, a labor and employment lawyer at Littler Mendelson in Miami, said he was “a little surprised” by Rundle’s comments. “Why would they bring up criminal charges?” asked Reed, who speculated that Rundle’s purpose was to scare businesses and that she never intended to prosecute any businesses. This week, Reed said his employer clients started calling with a very different concern. They wanted to know whether they had to pay employees for Friday even though their businesses were closed and no one worked. Reed replied that they had to pay salaried employees but not hourly employees.

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