City axes 12 for job abandonment By Ryan Culver
Baytown Sun
Published October 05, 2005
BAYTOWN — Deputy City Manager Bob Leiper said Tuesday the city stands behind firing some workers who evacuated town before Hurricane Rita.
“They weren't terminated because a certain street of drainage ditches was not cleaned,” Leiper said. “They were terminated because they abandoned their job.”
Baytown Human Resources Director Alison Froehlich-Smith said they have fired 12 employees so far for “abandonment of duties” in the aftermath of Hurricane Rita. She added that she has received six appeals.
Hurricane Rita was at one point a Category 5 hurricane headed for the Houston Ship Channel, but did minimal damage in Baytown when landfall occurred near the Texas-Louisiana border. Many thousands of residents along the Texas coast fled the storm in what some are saying was the largest evacuation in United States history. When Rita made landfall Sept. 24, it brought sustained winds of 70 to 80 mph to Baytown.
Immediately following the storm, the city of Baytown started firing employees who chose to evacuate instead of working through the storm.
One employee who was fired for evacuating was a senior water meter reader Joseph Mullins.
Fired Monday for “abandonment of duties,” Mullins said he was terminated so the city can downsize the department and replace workers with an automated program. Mullins had plenty of vacation time to cover his absence and said his supervisor actually told him to use vacation time before leaving.
Legally, the city officials say they have the right to fire workers who failed to show up for work last Thursday and Friday.
Chapter 22 of the Texas Labor Code says: “An employer may not discharge or in any other manner discriminate against an employee who leaves the employee’s place of employment to participate in a general public evacuation ordered under an emergency evacuation order.”
There is an exception to this statute that allows employers to hold "emergency services personnel" and any other employee who "is necessary to provide for the public safety and well-being of the general public, including a person necessary for the restoration of vital services."
Top city officials is standing behind the idea that all of their employees are "essential" at some point during disaster response.
"The well being of the city is paramount of our task as city employees," Leiper said. "It was necessary to have essential personnel on duty, before, during and after the storm."
Froehlich-Smith agreed that city employees, whether or not they are emergency responders, are essential.
"All personnel in the city are essential up and to a certain point," Froehlich-Smith said. She added that the essential personnel are asked to stay behind by their department head based not on an individual basis, but on their primary job duty.
Approximately half of all the city's employees left during the evacuation from Hurricane Rita. Froehlich-Smith said she didn't know how many of these employees were actually excused to go because the department heads handle who has to stay and who gets to go.
Leiper said that city jobs are not specified as essential or non-essential in the job descriptions.
He said he didn't know if any employee is told that they could be forced to work through a disaster. "When you hire someone, you can't tell them everything they might have to do over a 20-year career, Leiper said.
"Just because a person is hired, that doesn't mean the city cannot change the job duties or tasks over a 20-year tenure."
Some non-civil service workers, meaning they are not emergency responders like police and firefighters, said they were never asked to stay, and disagree that it was their job to stay through the evacuation. Regardless of the city's ability to alter job duties at any time, these workers are claiming they were fired without prior notice that they were going to be considered an essential employee.
The only prior notice Leiper has pointed out is a clause in every job description regarding mandatory overtime.
"Attendance is an essential function of this position," Leiper said is on all the city job descriptions. "The city reserves the right to require an employee to work overtime."
Some employers require their employees to sign additional forms specifically stating they will be available to work during a natural disaster if asked.
For instance, every hurricane season the City of Corpus Christi, where 10 employees were fired in 1999 for job abandonment during Hurricane Bret, requires their essential employees to sign documents saying they understand they could have to work during a hurricane.
Leiper said the overtime clause is enough for the city to hold these workers accountable for "abandoning their jobs."
"I think our city employees are accountable for being at work without making them sign something that says they should come to work," Leiper said. "Attendance is an essential part of this job, that means if you don't show up, you will get fired."
However, Leiper said whether the people are actually essential is not up to him or any of the other top administrators. He said the disaster plan allows for the individual department heads to decide who and how many employees will have to stay without any input from city administration. Leiper said the department heads don't even file reports about whom they designated as essential or how they went about designating them.
"I don't need to know that Joe Smith is working on the street." Leiper said. "I need to know that the directors have what they believe is a reasonable amount of equipment to handle the emergency."
The fundamental disagreement between the employees who were fired and the city is the definition of the word "essential" and how that word is applied to Hurricane Rita.
"Essential is available," Leiper said. "It doesn't mean their particular expertise was needed at that moment, but that their expertise would be available at a time during that emergency."
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