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).