As my great-grandfather would always say: “Expect the unexpected so when it reaches you you’re not surprised.”  Good advice generally . . .  but especially today. . . given the chaos caused by recent major weather events.  So, what can employers do to “expect the unexpected”? The answer is . . . Prepare.

Because employees often may need to work from home during weather emergencies (or threatened weather emergencies) one important “to do” preparation step is to create a telecommuting policy. Telecommuting does not change the terms or conditions of employment, so employers must comply with all applicable wage-hour, discrimination, and other federal, state and local employment laws.  Therefore, having such a policy helps reduce risk and liability by avoiding inconsistency in practice.  In short, evaluating requests to telecommute is best not done in an “ad hoc” manner.

Telecommuting policies, at minimum, should include: (1) eligibility criteria, (2) request procedures, (3) decision-making guidelines and (4) a disclaimer providing that telecommuters assume all liability for any injuries suffered while telecommuting.

It is also important to remember that all hours worked away from the office must be recorded in a way that allows the employer to meet all wage-payment and record‑keeping requirements of the Federal Labor Standards Act (“FLSA”) and applicable local wage and hour laws. This is underscored by the fact that the FLSA (and many state specific wage and hour statutes) require that employers keep payroll records tracking employees’ wages and hours worked.  Employers should strictly comply with this recordkeeping requirement (even when employees telecommute), because when “an employer fails to meet its burden, the district court ‘may then award damages to the employee, even though the result be only approximate.’” E.g., McLaughlin v. Ho Fat Seto, 850 F.2d 586, 589 (9th Cir. 1988).

Originally published by the SHRMBlog, republished with permission.

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Photo of Keisha-Ann Gray Keisha-Ann Gray

Keisha-Ann G. Gray is a distinguished litigator and trial lawyer who has secured significant victories in federal and state courts (jury trial and otherwise) for organizations facing “bet the company”, high-reaching, reputational risk claims. An award-winning partner in Proskauer’s renowned Labor & Employment…

Keisha-Ann G. Gray is a distinguished litigator and trial lawyer who has secured significant victories in federal and state courts (jury trial and otherwise) for organizations facing “bet the company”, high-reaching, reputational risk claims. An award-winning partner in Proskauer’s renowned Labor & Employment department and co-chair of the Firm’s Workplace Investigations practice group, she advises clients on high-stakes employment litigation and complex investigations matters. As important social change movements like Black Lives Matter, #MeToo and LGBTQ Pride continue to shape society and businesses, Keisha-Ann is the go-to advisor when addressing issues related to discrimination, harassment and/or lack of diversity.

With 20+ years in practice, Keisha-Ann frequently speaks and trains on employment matters such as litigation and trial practice, conducting effective investigations (the trauma-based approach), Diversity, Equity & Inclusion, and Anti-Discrimination/Anti-Harassment. Her “real talk” style of delivery provides clients with actionable and practical best practice solutions to today’s most challenging workplace issues.

Prior to joining Proskauer, Keisha-Ann served as an Assistant United States Attorney in the Eastern District of New York and federal law clerk in the U.S. District Court for the District of Puerto Rico.  The breadth of Keisha-Ann’s experience and background in federal government, coupled with her tenure in private practice as a Big Law partner and employment litigator, gives her the unique ability to meaningfully connect with diverse groups of people. This skill enables her to advocate effectively and successfully (in and out of the courtroom) for her clients. As a result, Keisha-Ann is also frequently called upon to conduct high-profile internal investigations. Because of her unique and varied skill set, clients routinely engage Keisha-Ann to handle their most sensitive matters which, due to her involvement, often successfully result in non-public, confidential resolutions – precisely the mandate required by her clients.

Keisha-Ann enjoys giving back to the community and profession by serving as a member of the Mayor’s Advisory Committee on the Judiciary. She also serves on the Board of the Attorney Grievance Committee for the NY Supreme Court Appellate Division, 1st Department, the Board of the Federal Bar Council, and the Board of the Eastern District Association. In addition, Keisha-Ann co-Chairs the Federal Bar Council’s Employment Litigation Committee, and mentors junior female attorneys and junior attorneys of color.