Flexible … and Judgmental?

How to Avoid Unintended Consequences in Your New Flexible Work Arrangement

Spring is here! (For Chicago readers, spring is a season, following winter, where it stops snowing, plants grow, and it’s not yet unbearably hot). Save for a couple hiccups along the way, vaccinations are increasing at a steady clip. As the last REB post mentioned, some employers are eager to see a return to in-office work. Of course, some employees are excited to return, too.

The EEOC has given the green light for employers to ask for proof of vaccination (training tip: be careful how you do so!), so one can envision how this can safely work. But, how should it work? For employers looking for creative ways to entice employees back to the office without eliminating the life they adjusted to in 2020, flexibility is key. Can it also be problematic?

The “Dress For Your Day” Paradox

If you commute to work via public transportation, you notice that at least half the car is dressed in jeans, flowy skirts, even (gasp) open toed shoes. Another large portion of the crowd is dressed as if they are going to meet their in-laws for the first time – not too fancy, but pressed and buttoned. A tiny sliver don a full-blown suit. Maybe most of the suit wearers drive to work; or maybe not. The fact is, as we look around, the dress code in office life changed over the years. Just ask the pantyhose industry. Many companies have a “business casual” approach, some offer Friday as the day for denim, and others do away with these rules all together in favor of a flexible policy known as “dress for your day!”

When thinking about how to approach the return, the flexible dress for your day model sounds promising. However, it also serves as a cautionary tale. Flexibility does not always foster inclusivity. According to Professor Richard Thompson Ford, author of Dress Codes: How the Laws of Fashion Made History, “casual workplace dress codes are increasingly common. But although they allow more personal freedom, they don’t really eliminate the judgment that can attach to clothing. Instead, they require us to figure out for ourselves what is acceptable for a given professional setting or occasion. In this sense, casual dress codes can be more demanding than strict rules: they force us to reveal our savoir faire, cultural background and individual sense of self. They are also especially tricky for women, who have more options in their fashion choices, but are also subject to more scrutiny. The traditional business suit can look like a nice, safe choice by comparison.” (The same irony is often found in “unlimited PTO” policies, which can result in a bizarre Who Worked the Most? competition, evidenced by overworked employees and cancelled vacation plans).

How do we avoid a flexible work environment becoming a source of stress? While I recommend employees have choice in 2021 when it comes to their work arrangement, available choices offered by the company should be acceptable choices according to the company. As employers contemplate how to welcome back employees, they must not inadvertently create a hierarchy based on who made the “right” or “wrong” choices. This will create an unpleasant work environment – or worse. Therefore, before you announce your new policy, educate your leadership, managers, and hiring professionals. Make your commitment to your policy well known. Talk about the risk of how employees’ scheduling choices could be perceived differently depending on their gender, marital or parental status, or age. Train your team to avoid acting on these (often-unconscious) biases.

Each employee has unique needs and demands. Their calendars, like clothing, will vary. By designing a truly flexible work schedule, employers can attract and retain good people who may no longer wear sweatpants, but still want to work from home from time to time.

An Aberration.

Goldman Sachs is focused on welcoming a new class of graduates and interns into its offices this summer. Recently, CEO David Solomon declared that working from home would be short-lived at his company: “This is not ideal for us and it’s not a new normal, it’s an aberration that we are going to correct as quickly as possible.”

Aberration (noun): a departure from what is normal, usual, or expected, typically one that is unwelcome.

(Hence, the need for correction).

They say that first impressions matter. Interns enjoy an entire summer of first impressions when they set foot in their first corporate job. They are (often) young, eager to learn, and curious as to what their chosen host family is all about. Will they stick it out for one summer, never to return, or will they build a life around a career at this very place? Will they be a long-term asset to the company, or a quick entry on their alumni list?

You might say that it is impossible to know. If the past year has taught us anything, it is that life throws curve balls. No amount of personality assessments, trainings, and perks can compete against a cross-country move for a spouse’s job, a health crisis, or a tragedy. Yet, some things are predictable.

People who do not feel seen leave companies.
People who do not feel heard leave companies.
People who do not feel respected leave companies.

Also, turnover is expensive.

Long before COVID-19, there were workers who desired more flexibility at work. Many, in fact, needed it. It is women’s history month, so let’s talk history. Many women have not even applied to certain jobs because the requirement of in-office time (the original FaceTime) eliminated the ability to both fulfill their duties and arrive at daycare by closing. For many of these working moms, the experience of the past year has opened up the possibility that they may be able to, even for one day a week, work from home. This provides a more inclusive atmosphere – and not just for women. Valued, talented employees who commute an hour each way for work may feel like this nightmare has been some version of a dream (and not just because of the extra hour of sleep). People who hate traffic (read: everyone) may feel less stress in their mind and their back.

We all crave some parts of our 2019 lives, and we will return to the office. Our culture depends on people interacting, and there is no substitute for in-person training, mentoring and collaboration. Yet, it would be a shame if we returned without thinking about what we have learned while we were away. Remote work is not all bad, and it comes in many forms. Though some may wish it away, this is a new normal for many.

The Era of Reflection

When the world is still, quiet, even boring, people start to think. When the present is less blurry, the past becomes clearer. There is time for nostalgia, regret, and resolution. It is winter in the winter of the pandemic … or so we hope.

As one of my favorite books reminds me, the busiest times can feel like the “end of living, and the beginning of survival.” Ironically, as the world sheltered in place to survive a once-in-a-century virus, some portions of society started to live. They reevaluated how they lived and worked, realizing that the way things have always been might not always be. Look to the ongoing debates among cities and their educators, and you spot an interesting trend: life is creeping into conversations about survival. Retroactive reviews of schedules, benefits, and more, are happening. Many employees do not envision a return to the way things were, plus mask. It is undeniable that the past year formed an imprint – one that will last well beyond the virus and its variants.

February 6, 2021 marked one year since the first known COVID-19 death in the United States. The year has been described as both fast and slow. Like a vacation with a nice, steady view, time has flown. At the same time, it is hard to imagine getting back to crowded parties and unmasked faces. In that sense, it is as if the year has been an era. If you feel that, your employees do, too.

Thankfully, vaccines are here. Vaccinations are increasing every day. Employers must anticipate the many questions and concerns this return to normal will generate from employees. Yes, employees are grateful to get their lives back; but in what capacity? Surely, you have an employee who does not miss a daily two-hour commute, and came to value the peace of a slower morning at the kitchen table with his spouse. Ignore the Era of Reflection, and you may lose your greatest asset: your people.

Curious as to what your team is reflecting on these days? Consider the following steps before you make any major decisions:

  • Utilize anonymous surveys to understand needs and wants
  • Engage existing groups of employees (ERGs, interest groups, etc.) to weigh in on priorities
  • Form a “Return to Work” committee, made up of a diverse group of employees (i.e., not just upper management)

Winter is Upon Us – What’s Next?

In an increasingly nerve-wracking world, communication will reduce fears and increase morale.

I’m writing to you deep into a global pandemic, facing down an important election, with a five-year old in the room next door in virtual Kindergarten. I think I made the right decision to put my other kid in daycare. I still need to buy Halloween candy. There is a lot going on.

Americans today are uncertain about the world around them. Easy decisions are now complicated. Can employers provide a proverbial shoulder to lean on, even when remote? Absolutely. Let’s look at a couple of common ways to provide stability to your team as we enter what some are calling the darkest period of the pandemic:

COMMUNICATE about your (financial) health

How is the company doing? Has COVID-19 harmed your bottom line, or are you doing better than ever? A persistent fear of unemployment, even one that proves baseless, affects mental health. Now more than ever, it is helpful to give at least a snapshot of the economic realities facing your company in late 2020.

COMMUNICATE about your timing

When are we going back to the office? If you haven’t heard that question, your employees are repeating it to themselves. While nobody should have plans in 2020, remember that your employees may have plans to not do certain things. Those include, depending on their risk tolerance:

  • Take public transportation
  • Ride an elevator
  • Talk to someone from six feet away
  • See other people

Good communication will also help those with homeschool responsibilities and elder care as they consider how to rearrange their new routine. If you are based in a city or state urging employees to work from home, expect resistance from employees for health and safety reasons. Review EEOC guidance and applicable COVID-19 related ordinances, and develop a plan to review requests for reasonable accommodations in a fair, nondiscriminatory way.

COMMUNICATE your appreciation

This goes without saying, but COVID-19 did not end the need for feedback. In fact, a remote environment requires even more back-and-forth on needs, wants, and outcomes. When somebody on your team does a task well, thank them. Picking up the phone makes a difference. Did they screen your happy call? They might be anxious – half the calls they receive today are asking for political donations. Leave a nice voicemail.

Recruiting Remotely – Building Your Team From Home Can Reap Benefits

In the midst of furloughs, layoffs, and terminations, companies are still hiring. While the pandemic forces us to change the way we recruit, it also provides an opportunity to make the process a smarter, more efficient, and more equitable one for everyone involved.

Hiring was always difficult – but the challenges are new

Whether you head Human Resources or sit on the hiring committee, you know that there is no good time for an interview. The process can be long, tiresome, and awkward. Depending on your company’s protocol, you may find yourself engaged in a panel interview, a one-on-one, and a lunch. As luck would have it, your scheduled slot will appear on your calendar wedged between an important meeting and a crucial deadline. You will move the interview only to cut it short when you do meet the candidate. “It’s usually not this crazy …” you’ll say as you usher them to the elevator.

Now, we truly know crazy. Some employees are engaged in a bizarre “work from homeschool,” others are grappling with tragedy or anxiety over it striking. Applicants are not immune, and may be dealing with the effects of lost income as well. How should you go about interviewing in this new, fraught world? Do the same rules apply? Will you get to know candidates when you can’t take them to lunch? What do you do if references don’t call you back because they are between jobs, juggling remote learning, ill, or too overwhelmed by 2020 to talk? With Americans increasingly questioning their choice of residence, career, and even spouse, how do you know that this candidate really wants this job? Nobody wants to be a COVID-19 rebound.  Here are a couple thoughts for a remote employer hiring:

  1. This can be the time you get to know your applicants
    Onsite interviews are formal and stressful. Enjoy getting to know candidates on their own turf. If you live in a warm climate, take two folding chairs to a park, sit six feet apart, mask up, and have a long, fulfilling conversation without the din of diners and the staccato of stories interrupted by refilled water. You didn’t really know the candidate after one lunch. Why not try something new? If it’s too cold for this idea to take form, videochat is always available. If they cite “Zoom fatigue,” they aren’t interested enough in the position. People show up for what they want.
  2. This can be the time you look for resiliency
    Who do you need to round out your remote team? COVID-19 is not going away anytime soon – just ask Bill Gates. Today, we need flexible people, who grow with challenges and enjoy learning new things. You also need better talkers and listeners, who can deftly navigate the telephone and video chat with ease and a bit of humor. There are dozens of well-regarded online assessment tools (industry and skill-specific) that can help you target particular talent. Even when COVID-19 is a distant memory, remote work will not be. Fill your team with people comfortable in different settings.
  3. This can be the time to get serious about diversity and inclusion
    Let me put it bluntly: friend-of-a-friend hiring perpetuates the Old Boys and Girls Club. As it turns out, so does a rigid onsite schedule. Take the opportunity that this new world presents and look for people outside your network. Look for diverse candidates – in race, ethnicity, age, and parental status. With a thoughtful recruitment process, you can attract candidates who you would not otherwise find. Do you need tips on how to get started? Talk to a diversity and inclusion consultant.
  4. This can be the time to become efficient
    Poor commuter trains. Until recently, a large portion of American society just assumed that they have to be boarded Monday through Friday in order to get to work. Now that many of us commute from bedroom to office via a ten-second walk, we should consider other ways to speed up processes. How can you streamline interviewing? Take stock of old techniques, ask hiring committee members about their experience, and develop a process that gets what you need out of the interviewee. When you are looking for a good fit, it is often quality over quantity.

This is not an easy time to get to know your applicants, but there is hope. A global pandemic has a way of peeling back the layers of your process, your work, even yourself, until you get to the core of what makes it tick. Let’s use COVID-19 to grow our teams to be better than ever.  

Suffered or Permitted: Tracking Work from a Distance

Yesterday, the Department of Labor (DOL) Wage and Hour Division issued guidance on tracking teleworking hours for non-exempt employees. Reminding employers that the math is simple (an employer is required to pay employees for all hours worked, including remote work), the guidance also recognizes that it can be fudged.

The Fair Labor Standards Act (FLSA) requires employers to pay for work suffered or permitted, even if not requested or scheduled. As for work completed without the knowledge of the employer? Perhaps this work is compensable as well. If an employer “knows or has reason to believe that work is being performed, the time must be counted as hours worked.” In other words, the question is not: did the employer know? The question is: should the employer have known?

When faced with a wage and hour claim, Courts look to whether the employer should have acquired knowledge of hours worked through reasonable diligence. As the DOL suggests, citing Seventh Circuit precedent[1], employers can pin down even the most fluctuating of schedules by providing a “reasonable reporting procedure for non-scheduled time.” 

How can employers avoid wage and hour liability, and what are specific issues remote employers should consider?

Develop a Reporting Procedure

To balance budgets and protect the company from liability, establish an easy to use, easy to understand reporting procedure for employees working off hours. The procedure will also alleviate the burden on you, as the employer, of cross-referencing schedules and calculating time. Per the DOL, though an “employer may have access to non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours, reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through this information to determine whether its employees worked hours beyond what they reported.” Where there is a reporting system in place, mere access to this data does not require you to mine for it.

Train Your Managers

Yes, I brought it up again. Policies are only as good as your people, so train your people to promote the policies. As the DOL warns, “… an employer’s time reporting process will not constitute reasonable diligence where the employer either prevents or discourages an employee from accurately reporting the time he or she has worked, and an employee may not waive his or her rights to compensation under the Act.” In other words, if your employees are encouraged, pressured, or threatened to reduce their hours, that reporting procedure you initiated will not be a strong defense.

Implement New Technology

How did you track hours before? If you need a change, there are a variety of timekeeping apps on the market. If you settle on a technology that uses fingerprint, handprint, iris scans, or other biometrics to log in, take care to understand laws related to biometric privacy in states like Illinois, Texas, and Washington.

Check Your States – Including the New Ones!

Do you know the minimum wage in your state? Your city? Of course you do. Do you know the minimum wage in the state your employee now resides after the pandemic resulted in a sudden move to be closer to family?  Maybe not. Similarly, do you know the wage and hour rules in those states? Different states have different definitions of overtime, a variety of restrictions on how quickly and by what method paychecks are issued, etc.

Remember the Safe Harbor

Whether your employees are remote or not, employers who make improper deductions from salaried employees’ wages can lose their FLSA exemption. However, the DOL provides a “safe harbor” provision in the event that such deductions are not willfully made. Remote employers should ensure that this information is provided to employees, and that improper deductions are promptly reimbursed. The safe harbor provision must “clearly communicate” that the company prohibits improper deductions. The DOL states that a communication is clear if it is published in the employee handbook or the company intranet, and contains information on the method by which an employee may report a violation. If you have not circulated your policies since everyone walked out the door, now is the time.

[1] Allen v. City of Chicago, 865 F.3d 936, 945 (7th Cir. 2017), cert. denied, 138 S. Ct. 1302 (2018)

Gone Rogue: How to Prevent Naysayers and Deniers From Trashing Your New Remote World

First of all, I hope this headline isn’t too negative. God knows that’s the last thing you need in 2020. Yet, this blog can’t escape the reality of the moment, nor should it. We are here to help you think through everything that could help or hinder you going remote. America is deeply in a pandemic, very close to Election Day, while immersed in a long-overdue awakening about racial justice. If you think that these huge, national events don’t shift individual behavior and stress relationships, you have never gone home for Thanksgiving. Here we are: excited to push for a healthy, productive, and profitable remote office, but mindful that there are forces around us that constantly pull us backwards. What happens when your people resist your changes, or ignore them?

“The Denier”

One of your managers makes jokes on her Facebook feed about masks, scare tactics, and alarmists. You receive a complaint from an employee. What do you do? That depends. If you are a private company, your employees don’t have free speech. However, they have some right to speech beyond those set forth in the Constitution. They have the right under the National Labor Relations Act to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. They have the right in certain states (California, Colorado, Louisiana, and New York) to engage in political activity. Have they violated your Code of Conduct? Perhaps. Can you retrieve their password to investigate what they are saying? Not so fast. They have a right in other states (California, Colorado, Illinois, and 23 others) to keep that information private.

There may be little you can do, but you must do something. When you receive a complaint, investigate it. Ask questions of the person who complained, collect witness statements, and talk to the alleged offender. Has she engaged in bullying prohibited by your company? Has she said anything that qualifies as discrimination or harassment? A word to the wise: while you must react to a complaint, avoid proactive investigations into the private social media communications of your employees. For one thing, that’s a lot of work. Additionally, monitoring their life in the cloud is an inefficient way to protect your culture and a bad way to pump up morale.

“The Corner Cutter”

You have carefully followed CDC and state health department guidelines to keep your team safe. Primarily, by encouraging employees who can work from home to stay at home. What do you do if faced with a supervisor who asks his direct reports to meet him in person? Are you liable for his actions if an in-person meeting results in an employee contracting COVID-19 and dying? Maybe. While the Senate continues to debate whether liability shields for businesses who spread COVID-19 are a good thing or not, they are actually not yet a thing. We have years to see how the courts treat (and define) on-the-job injuries in the COVID-19 era.

Pursuant to OSHA, employees “who exercise supervisory functions shall, to the extent of their authority, furnish employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Is your corner cutter creating a recognized hazard by calling a meeting? Once again, the answer is maybe. OSHA requires employers to assess occupational hazards to which their workers may be exposed. A number of factors, including the nature of industry, an individuals’ role, and the working environment must be assessed. The point: your company must not breach protocol at the whim of a supervisor. Remind your leaders to seek approval for any arrangement that bends or ignores safety rules, and discipline those who do not comply.

“The Anti-Vaxxer”

A portion of your office staff needs to go into the office on a staggered basis. You are not a healthcare provider or even in the healthcare industry, but you have encouraged your employees to get their flu shots. Officials are worried about a “twindemic” this season, and you are ready to take any action you can to mitigate risk. An employee tells you she won’t get vaccinated. What do you do? Please don’t take an adverse action against the employee (including disciplining, demoting, or terminating employment) because of what you deem to be mere intransigence. You need to dig deeper.

Back in March 2020, the EEOC updated its guidance on compliance with the ADA during a pandemic. First issued during the H1N1 crisis of 2009, the document provides workplace strategies “in a manner that is consistent with the ADA and with current CDC and state/local guidance for keeping workplaces safe during the COVID-19 pandemic.” In a Q&A, the EEOC makes clear that, for employers subject to the ADA and Title VII (those with 15 employees or more), mandatory vaccines are always subject to exemption based on federal law:

Q: May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

A: No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Competing forces will dictate whether you decide to mandate vaccines as the flu makes its debut. It may be that your workforce, your customers, or your landlord make the decision for you; perhaps the pandemic’s progression will change CDC and health department recommendations and so too the guidance of the EEOC. As but one example, as of March 17, 2020, the EEOC currently permits employers to take the body temperatures of employees (typically a medical examination prohibited by the ADA) due to precautions issued by the CDC and state and local health authorities to stop community spread. How could the course of COVID-19 change guidance going forward? It is not clear. However, the EEOC has recently reminded employers to make reasonable efforts to accommodate sincerely held religious beliefs and disabilities when it comes to donning Personal Protective Equipment and submitting to screening procedures. Should a vaccine for COVID-19 become available, learning more about how the virus spreads may influence the judiciary’s assessment of whether refusing one is an undue burden on a specific workplace. For now, however, don’t impose a mandate without exception for an old fashioned flu vaccine. Remember to promptly engage in the interactive process when faced with a religious objection or disability-related concern.

It Was Friday the 13th

Do you remember where you were the day the office went away?

Four months have passed since the modern office vanished. It was Friday, March 13, 2020. Like any good scene in a scary movie, it happened quickly – with little warning – though there were whispers here and there.

If you were a train commuter back then, you cautiously boarded on Monday, March 9, aware that the formerly acceptable sardine-like configuration of human bodies was not smart, but unaware that it was the last week you would be inside another man’s armpit.

If you were a music lover, you might have caught a live show, aware that nobody coughed between sets, but unaware that the venue would shutter in days and, perhaps, never reopen.

If you were a proud working parent who finally “had it all” – thanks to a mixture of some planning, much outsourcing, and a whole lot of luck – you were slightly annoyed by the talk of a school closure, but never imagined that a pushed-up spring break would become … summer.

Yes, the world is different in July than it was in March. And if you are an employer, your team is living with you in that world. Some are terrified. Others are lonely. A couple feel just fine (they tend not to have children at home). The minute #togetherapart started trending, the office changed forever. For many sectors, what was once a perk became a necessity. For other sectors, what was once a job became an essential service. We were no longer navigating a discussion over flexible work policies, #MeToo, and work-life balance. Like the 2020 primary, the hot topics lost their heat. What matters now? Two things: COVID-19 and how you respond.

The Brave New Remote World is here.

This blog will analyze the remote employer. We’ll look at trends, challenges, liabilities, and opportunities. We’ll study issues like safety, privacy, morale, and organization, and tackle the legal implications of this new world, including ADA accommodation, FLSA wage and hour, and, yes, #MeToo – unfortunately, sexual harassment exists on the internet.

Whether you were a remote employer in pre-COVID days or are just getting started, we hope you’ll follow along.

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