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).
Keisha-Ann G. Gray is a partner in the Labor & Employment Law Department and co-head of the Policies, Handbooks & Training Group at Proskauer Rose LLP. She is an experienced trial lawyer with a background in both the private and public sectors. Her practice focuses on civil law with an emphasis on employment discrimination work. Keisha-Ann counsels companies on complaint prevention and regularly litigates sexual harassment, race, age, gender and disability discrimination, retaliation, and wrongful termination claims before federal and state courts.
In addition to her legal practice, Keisha-Ann is the resident Legal Clinic Columnist for Human Resources Executive Online Magazine where she authors the magazine’s monthly management-side employment advice column and responds to reader questions. She is called upon frequently to speak and lecture on trial practice and employment discrimination defense matters.
Prior to joining Proskauer in 2007, Keisha-Ann was an Assistant U.S. Attorney in the Eastern District of New York. During her tenure in the U.S. Attorney's Office, Keisha-Ann defended federal agents and agencies, including but not limited to, the DEA, FBI and the U.S. Postal Service - the largest employer in the U.S. - against claims alleging workplace harassment, discrimination and constitutional tort. She gained recognition from both colleagues and the Federal Bench as a premier trial lawyer, having successfully secured numerous defense verdicts and judgments in some of government’s most complex cases. In addition to her trial work, Keisha-Ann has written and successfully argued motions before federal and appellate courts.
Keisha-Ann also is a former federal law clerk, having served two-years in the Chambers of the Honorable Jaime Pieras Jr., Senior Judge in the District Court for the District of Puerto Rico. As a federal clerk, Keisha-Ann played a substantial role in evaluating and analyzing numerous single and multiple plaintiff employment discrimination actions that were assigned to the Judge’s civil docket.
Keisha-Ann is a 2009 recipient of The Network Journal’s prestigious “40 Under Forty” Award. In 2011, she was inducted into the YWCA of New York’s Academy of Women Leaders for her distinguished achievements in business and otherwise, in and outside of the law. Most recently, in 2013, The New York Law Journal awarded Keisha-Ann for her successes within the New York legal community by selecting her for induction into its inaugural 2013 Class of Rising Stars.
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