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I think one thing the pandemic has taught us all is that we all need to be flexible and open to new methods for how we work. I think workforce preferences are changing, no one can deny that. But that flexibility, both from a risk management standpoint and also a productivity standpoint, I think requires employers to revisit their policies and their practices more often.
Welcome to The JoyPowered® Workspace Podcast, where we talk about embracing joy in the workplace. I’m Susan White, owner of Susan Tinder White Consulting, an HR consulting practice. With me is my co-host and dear friend JoDee Curtis, owner of Purple Ink, a large HR consulting firm.
Our topic today is designing hybrid workplaces and mitigating legal risks. At the time we’re recording this podcast, late summer of 2021, many employers are struggling with how much flexibility or work from home really makes sense for them. The pandemic caused all of us to rethink who needs to be at the worksite and who could work from remote locations. HRdive.com in April 2021 cited Prudential’s “Pulse of the American Worker Survey” conducted by Morning Consult in March of 2021, and here are some of the interesting things that they found.
Of those surveyed who worked remotely during the height of the pandemic, 87% of them want to keep working remotely at least one day per week.
42% said they would seek another job if their employer refuses to offer flexible work options in the long term.
And 41% said they wouldn’t want to work solely remotely and instead prefer hybrid office work from home alternatives.
With the war on talent we’re all facing, figuring out how to create and sustain a workforce with a hybrid approach to be “in office” could help us attract and retain talent wanting this flexibility.
Now a word from our sponsors. We’re excited to tell you about our newest book, “The JoyPowered® Organization.” JoDee teamed up with fellow HR pros Megan Nail and Jeremy York to share research, ideas, stories, and experiences to help you build a positive organization with employees who have been empowered to find their joy.
You will learn how intentionally focusing on areas like diversity, communication, total rewards, and more can inspire joy in your organization. Find out more about “The JoyPowered® Organization” and how to buy it at getjoypowered.com/books.
Our guest is Corinne Spencer, who is a Senior Employment Counsel and the Chair of the firm’s Labor and Employment Practice Group of Pearlman Brown and Wax. Prior to her current role, Corinne was counsel with Lewis, Brisbois, Bisgaard, and Smith, a national full-service law firm listed among the AmLaw 100. Corinne, we are so happy that you’re here.
Oh, thank you, Susan. I’m really excited to be here. Thank you for having me.
Absolutely. So Corinne, would you be willing to share with our listeners, how are employers’ risk exposure increasing as businesses are starting to go back to a new normal with some people in the office, some people at the worksite, some people at home, and everything in between?
Yes, of course, though, I think, quite frankly, Susan, like you said, the new normal is going to be some kind of version or variation of that – a hybrid work model, with some employees being at home, some working from the office, and some working part-time at the office and part-time at home. I think we’re all still, quite frankly, trying to figure out exactly what that new normal is. I think the increased risk exposure is potential lawsuits from hybrid and remote workers over reimbursable business expenses. So some of those overhead costs… when employees were sent home at, say, the outset of the pandemic, they needed to use their own equipment, their own, you know, laptops even, for some, or their own cell phones to call into meetings. Those types of costs really are considered overhead cost that the employees shouldn’t have to burden. So those are subject to, you know, reimbursable business expenses and those types of claims, employees could bring those – hybrid and remote workers. And with this new normal, my concern of an increased risk exposure is employers either failing to identify that, the fact that some of those overhead costs are owed to employees, or failing to adjust now that they’re bringing some of their employees back, they might stop paying them entirely for some of those costs. So I think it’s important for employers to understand that wage and hour exposure and the potential lawsuits in that regard.
Yeah, interesting. I mean, I know that was an issue early on, but to be honest, I’d kind of forgotten about that.
Corinne, are you seeing some other types of workplace models that are being implemented?
Yeah, many of my clients have employees coming into the office a couple days a week and working from home the other days of the week. However, with the Delta variant, even this is in flux. I’m seeing some clients have their employees all come into the office, you know, that same two days a week, and everybody’s working remotely the other three. Some of my employers are now trying to stagger that, so they have some of their employees coming in on two days, the others come in on the other three, to prevent that overlap of employees being in the same space. And some employers are letting employees choose what days they come and what days they go, or where they’re working from, you know, and others are just completely remote, like, we see some businesses decided, you know, forget this kind of hybrid thing, we’re going full remote, we’re not bringing people back, we’re going to change our business model entirely to avoid overhead costs. So I think there’s just no single solution for all businesses. You really need to understand the business needs and what industry you’re in, what you can do to determine what the best model is, whether it’s hybrid or remote or back in the office.
Makes good sense. Corinne, what should employers be thinking about if they do plan to allow some employees to have this flexibility in the working from home and others not?
I think it’s really important that employers set objective standards through job requirements and job descriptions from the outset before they’re determining who has flexibility for working from home or working remotely. I think examining your workforce and the job requirements of each position is important so that you have a system in place to decide who does get flexibility and who does not and you can avoid any kind of appearance of favoritism, avoid any potential discrimination claims for some people being able to work from home and others not by really grounding it in the job requirements and job description that you have for your company.
You know, I think that’s really smart. All the job descriptions that JoDee and I have created over the years, we never, I think, ever thought about how we include “this job must be performed on site,” or “this job has flexibility.” But it makes all the sense in the world now to be thinking that way.
Yeah. And I do think this is one of the most interesting avenues… You know, I hear some companies who maybe part or most of their workforce has to be on site, right? They’re in construction, or they have tellers in financial services, and so some of them feel like, well, if some people have to be here, we all need to be here. Right?
I’ve heard that as well.
Yeah. And others… Which is then frustrating for the people who don’t need to be there. But then others who say, hey, with some people, it just makes sense, and some people it’s not. And those are the difficult ones, I think, when it’s partial.
I agree, just that appearance of unfairness is… is never a good sign. It doesn’t foster good things in the work environment.
Corinne, what is your advice to avoid mishaps and the legal risk when figuring out whether you want to have all employees on site every day or hybrid or complete work from home?
My advice, I think it’s important for employers to really allow for employees to be invested in that decision or determination. I think it’s a good idea, employers, to use – whether polls or even in meetings – to talk to their employees about what’s working best for them. Are they… are they enjoying working from home? Are they… Do they actually prefer the the separation of work and home and want to be in the office because that allows them to be more productive? I think when employers engage their employees and actually care about what their input is and how they are most productive and how they’re, quite frankly, like, happiest workers, helps avoid, you know, the potential for lawsuits or the potential for risk. Happy employees, you know, equals fewer lawsuits, it tends to be. I’m… I’m a firm believer that, like, emotion and emotion, you know, coupled with maybe potential for financial gain, tends to drive lawsuits. Your disgruntled or employees who feel betrayed or resentful of their employers, those are the ones who seek out attorneys and try to bring claims. So if you… When you’re making this determination or decision as a business owner of what work model is best for you and your operation, I think balancing business needs, operational costs, and also employee input is critical. And I think that that helps you avoid mishaps and legal risk with that kind of buy-in from the employees and the potential to instill loyalty. That’s my advice.
I think it’s great advice. I do, I think when people feel like they’re not really treated fairly or they feel like they’re being used or any of that, that’s when they want to lash out with lawsuits. So wonderful advice there.
Corinne, I’m thinking that we’re going to want to codify this, if we’re giving somebody any type of flexibility, that we want to have, like, a flexible work arrangement agreement or even a hybrid work agreement. Have you done any of these or given advice to some of your clients? What would you include in a work agreement about flexible work options?
I think that’s it’s a great point. And I think that for any type of agreement where you’re adjusting or creating a hybrid or a flexible work agreement, it’s really important to set those expectations of what that looks like and to really put it down in writing so that employee and employer are on the same page of what the work agreement actually is. So in an agreement like that, I would recommend including, you know, the details about how and where and when the employee’s working, from what location. Include, you know, timekeeping elements, so that you make sure you’re including how employees are supposed to be tracking their time both either in the office or out of the office. There should be a policy in there about reimbursable business expenses, how to submit your expenses for reimbursement, but… and also a reminder that all other policies, such as anti-harassment, anti-retaliation, anti-discrimination, all of those still apply to employees as they’re working in the office or out of the office. So I think those are… those are elements that I would be sure to include in any kind of written agreement with your employees so that there’s no misunderstanding about what work is supposed to look like for you.
You know, that’s interesting, I was talking to my niece this weekend who has been working remotely in downtown Chicago for, you know, the duration of the pandemic, and she is very antsy to get back into the office to see people. But I also thought it was interesting that… so, she’s been working remotely for this long, but she also has a specific time to take a lunch and specific time to take a break and when she needs to be on her computer and when she doesn’t. Now, as she told me more about her role in the company, some of that made more sense than first was obvious to me. But I think most of us think about, “oh, we can work from home, we have total flexibility.” Right? And that’s not… not always the case.
What advice… or what have you seen about how employers could or should be monitoring and providing oversight to people working remotely?
I think there’s a distinction there in your question about what is legal oversight, trying to avoid any kind of risk or potential for lawsuits and also oversight in the sense of managerial supervision and leadership, right? So from a legal perspective of oversight, I think really looking at, you know, non-exempt employees, like you were talking about maybe your niece, or employees who do need to track their time, they need to track the… their meals and their breaks. I think it’s important for employers to really invest in reputable timekeeping software so that their employees know exactly how to clock in, exactly how to clock out, you can avoid them being… you know, maybe avoid overtime, but ensure that they are being paid for any time that they work and also that they are provided their meals and breaks at the appropriate time. For your exempt employees and oversight in general and even some of your managers, I think really adjusting communication and their accessibility from… maybe whereas before in the office, you could manage your employees in a more passive way, to a more proactive manner. So employer… employer managers need to either be trained or shift gears to really engaging, being the ones to reach out to their employees, setting one on one meetings, maybe weekly one on one meetings so that you really can touch base and stay in front of your employees so they don’t feel like they just have complete control to do whatever they want, so that you can keep tabs on their performance, their productivity, and also their morale, like, checking in with them to know “Hey, are you doing okay? How are you? You’re not out there on, you know, your own island. You’re… you’re part of the team,” and it’s important for the middle management and management in general to really recognize that they need to take more action, I think, in making sure their employees are engaged and monitoring so that if there are issues they, you know, can and should discipline them it’s not just because people are remote, they’re insulated from that.
Corinne, is there anything we could do or should do proactively to avoid work-related injuries when employees are not working in our offices or work sites? Let’s say they stumble at home while they’re working in their home office – what’s our our liability?
Yeah, I mean, liability… California is a really… you know, the workers compensation system, it’s a no fault… no fault state, so you stumble at home, it’s likely going to be included as if – a compensable injury as if you stumbled at the office and suffered some kind of injuries. So there are a lot of similarities for an injury that might take place in an office and injury that does take place in the home is likely going to be compensable. I think a great way to proactively try to help avoid that is to create a remote work safety protocol. Such a protocol would include guidelines for setting up your own home office, taking into consideration hazards such as poor ergonomics, electrical and fire risks, and even mental stress. So having that protocol in place. We actually just did a seminar for our clients on such a topic, it was called “The Hybrid Employee: Minimizing Work-Related Injuries for Remote Workers,” where we dove deeper into these concepts with our clients and for our clients. So I also think employee engagement is really important here, because you know, employers no longer have control over the work place or the workstations where their employees are working. So really making sure employees understand that they need to communicate and check in with, “Hey, I don’t have a good chair, how do I go about getting a chair?” or examples like that, that they know they need to be engaged in the process to help avoid injuries from occurring in the first place and that they’re comfortable and happy working, as well.
Yes. Boy. Is the law in California being a no fault workers comp – Are there are other states that replicate that across the nation?
There are, I believe. I will have to say I’m not as familiar with the different types of the state laws in that regard. Some states are… are more liberal and more conservative than others. California is definitely liberal in that regard, that… that it’s a no fault state. Yeah.
But you know what, I think it’s wonderful. The concept of creating safety protocol, that’s just good sense. As an employer, whether you’re at risk or not for workers comp claims, why not make sure that your employees are well cared for and that they’ve gone through whatever, you know, safety practices, that is going to ensure, you know, the fact that they’re going to be successful?
Yeah. Well, and good advice to our listeners to look into finding out whether their state is a no fault state or not.
Corinne, anything else with regards to risk in working from home or hybrid models that our listeners should be aware of?
I think one thing the pandemic has taught us all is that we all need to be flexible and open to new methods for how we work. I think workforce preferences are changing, no one can deny that. But that flexibility, both from a risk management standpoint and also a productivity standpoint, I think requires employers to revisit their policies and their practices more often. So I think policies are how employers set expectations, and when employees and employers are on the same page and they all understand what the expectations are, I think that’s where you really lower and decrease legal mishaps and risk exposure. So really keeping an eye on the… on your policies and your actual practices is, I think, important for… for all the listeners to know.
Absolutely. And Corinne, how could our listeners reach out to you if they want to learn more or to engage you or your firm?
Yeah, I welcome that. I – they can contact me at my email. My email address is C-D-S at four, the number four, P-B-W dot com or my direct line, you’re welcome to call me at 818-639-1799. And I’m also on LinkedIn and I post links to our, you know, our firm’s upcoming webinars and seminars on there. So I welcome contacting or connecting with listeners on… on any of those forums.
That’s great. And we will include that information in our show notes. So Corinne, thank you so much for joining today and really giving us good education on this topic.
It was my pleasure. Thank you very much for having me.
Susan, we had a question come in from one of our listeners who sent in an evaluation of one of our episodes eligible for SHRM credit. The question was, “Should we include our remote work agreements in our offer letters?”
JoDee, I want to use our favorite HR answer. It depends. If we know that this job is going to be fully or partially remote into perpetuity… I mean, this is the way we’ve designed the job or committed to it, there’s no doubt about it. I think it does make sense. Include it with the offer letter. I think it is a condition of employment and should that person decide, “no, I desperately want to be in office every day,” and that’s maybe not what you’ve arranged for your physical layout to accommodate that, you very well want to make sure that that doesn’t come up as a surprise later. So I do think, in that case, put it in the offer letter. However, a lot of firms, they really like the flexibility of, you know, I… we want to be great employers that attract talent who want flexibility. Let’s periodically take a look and make sure that what we’re doing works for the individual, it works for the company, it works for the customers or whoever else is dependent on their work. And we might at some point want to pull back on that – maybe if they’re three days a week from home, maybe at some points, during critical periods, we might want to flex it to maybe two days, or you know, vice versa. So I want to say that putting it in the offer letter – do it only if it is something that, you know, is absolutely going to stay that way forever. I don’t know. Do you have any other thoughts, JoDee?
No, I just think in general, you know, setting clear expectations is best for both parties. Right? So I totally agree, then if you know this is the way it’s gonna be, make that clear. And if you’re not 100% sure, make that clear also.
Love it. That’s a good way of putting it. So it’s time for in the news. In July 2021, the Washington Football Team was fined $10 million by the NFL after concluding a long independent investigation found that the Washington Football Team created and maintained a workplace where sexual harassment, bullying, and intimidation was rampant. It makes me so sad. With all the great work many organizations are doing since the Me Too movement erupted a few years ago and the emphasis that the world is placing on diversity, equity, and inclusion in the workplace, it continues to amaze me that everyone hasn’t woken up. My thoughts are, for any employer that’s listening, maybe it’s time to do a self-audit, or create maybe a series of listening sessions, or maybe hire an HR consultant to come in and do a climate assessment so there aren’t those surprises waiting for you, so that you really are in touch and have a pulse on how people are feeling about the workplace climate.
Yeah, $10 million is nothing to sneeze at. Right?
To have a workplace where people feel comfortable and safe going to work. Well, tune in next time and make it a JoyPowered® day.
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