Date: Jan 06, 2022
Category:

While employers and employees continue to face workplace challenges associated with the shifting landscape of the return to work environment (e.g., decisions about adopting hybrid or remote approaches) it is important to keep in mind the potential risks and how they might be avoided.  Outlined below are a few key issues: 

Equal Consideration; Equal Treatment: Old notions die hard. This is especially true in the workplace where traditional notions of what it means to work – the ‘9-5’ ideal – are struggling against newer perspectives – remote/hybrid opportunities – brough to the fore by necessity. What it means to work and how that “work” is measured can be a source of potential risk especially in a hybrid work environment.  

At this point in our pandemic experience the limits and benefits of remote work are much clearer than they have ever been. Preconceived notions that employees who work remotely are less productive have been proven inaccurate (for at least 20% of the U.S. workforcei). Hybrid work, at least for some employers, provides new opportunities in recruiting, retention, and overall financial health of operations. Nonetheless, some jobs will always require in-person collaboration, specialized machinery, or on-site proximity. For these reasons there remains the risk of workforce inequities. For example, key staff who continue to view those physically present as working harder than those working remotely – and assign or assess work based on such views – risk worsening any actual or perceived inequities (e.g., inherent bias toward those with disabilities or individuals receiving any type of reasonable accommodation).  

It is therefore important that employers are mindful of the potential for unequal treatment when it comes to performance assessment and work assignments. Evaluation standards should be reviewed to ensure equal standards based on company-wide expectations (e.g., output and standards essential to the business) not physical presence. Including supervisory personnel in plans for hybrid (or any future work plans) and providing training on how to lead in a hybrid environment will assist these frontline employees in making solid leadership decisions.  

One For All And, All For One (policies that is): The desire to ‘return to normal’ has prompted many organizations to eschew remote possibilities and push for a swift return to in-person company-wide operations. To avoid potential claims of discrimination based on the application of a facially neutral policy (e.g., one requiring all employees to return to the office) employers should keep in mind the following: 

  • What are the unintended consequences of a company-wide ‘return to the office full-time or face termination’ policy?

  • How will such a policy impact recruiting and retention efforts?  

One unintended consequence could be the impact faced by specific groups of employees: those with dependent care responsibilities (children or ageing parents), those with disabilities or other requested reasonable accommodations. Any policy disproportionally impacting these or other groups of protected employees could be relied on as the basis for allegations of unequal treatment.  

As for impacts on recruiting and retention, statics show record numbers of employees are quitting or contemplating leaving their jobs. Dubbed the Great Resignation, the U.S has seen more than 19 million U.S. workers quit their jobs since April 2021.ii Whether its generational or simply a result of the loss and fatigue experienced by workers during the pandemic, individuals (of all ages) are looking for more from their work experience (e.g., flexibility and autonomy). Employers who fail to seize the opportunity to understand the needs of their employees and what it is they are looking for in an employer, risk losing their edge when it comes to creating a solid workforce. 

To help manage ask potential risk, before implementing company-wide mandates, consider these unintended consequences and brainstorm what efforts the company could make to lessen the burden of those impacted. As always, employers must be mindful of their duties and responsibilities under state and federal anti-discrimination and harassment laws to engage with employees seeking any form of reasonable accommodation. Also consider the impacts of an intractable position on hybrid or flexible work options. Take the opportunity to learn from employees who decide to leave the organization. Exit surveys/interviews can give an employer great insight into employee decision making and future trends within the organization.  

Members with questions about hybrid and/or flexible work policies should contact Western Growers.

WG Staff Contact

Teresa McQueen
Corporate Counsel

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