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Mass Telework Sparks Debate Over Lasting Work-From-Home Options

July 14, 2020, 9:05 AM

Raging for nearly six months, the coronavirus pandemic scattered a wide swath of the U.S. workforce from its offices.

Now private sector employers are being forced to confront a long-deferred question: will they retain this large-scale remote workforce flexibility or push to re-establish a status quo long perceived as integral to corporate culture?

Worker advocates have long pushed companies to be more open to remote work where possible, asserting it can help tamp down on discrimination against those with disabilities, older workers or caregivers.

Yet, many employers, backed by courts, have resisted providing remote work options, fearing a resultant drop in productivity.

Managers in the past were afraid if they can’t see a person at their desk making phone calls that the person isn’t doing as much work, said Chai Feldblum, Morgan, Lewis & Bockius attorney and former member of the Equal Employment Opportunity Commission. She said the pandemic and mass telework for part of the workforce provides clarity on what is possible.

“This is a moment for employers to sit back and think how they can make telework even better,” said Feldblum, who spearheaded a Georgetown Law report that advocated for flexible work arrangements that was released a decade ago. She now advises companies on their return-to-work plans.

Large technology companies have led the debate. Facebook has announced permanent remote work plans for some of its workers, and said it will move toward returning only to half capacity in the next decade. Twitter and Shopify also said they’ll have work from home permanently as an option.

Conversely, Microsoft has analyzed how its corporate culture worked, measured remote productivity versus being in an office, and has said there remains value to in-office work, and a danger to effective management and mentoring without it.

Considerations for Employers

Telecommuting is possible for less than a third, of the American workforce. Essential employees, including health-care workers, emergency responders, grocery store clerks and delivery people, and those in manufacturing and service jobs, either lost their jobs or didn’t have the option to stay home during the crisis.

Now, some businesses are considering keeping their employees remote, even when it’s safe to return, in part to reduce physical office costs, including real estate, according to a recent Littler Mendelson survey. Surveys from Gallup and Morning Consult, show the majority of employees also prefer some flexibility to stay out after the contagion ebbs.

But not everyone’s on board with that idea.

In a May interview with the New York Times, Microsoft Chief Executive Officer Satya Nadella expressed concern that early positive remote-work productivity metrics could conceal underlying deficiencies, in terms of managing and mentoring employees, even as Silicon Valley led a wave promoting the future of workplace flexibility.

Workplaces are not likely considering an entire work structure changing, said Susan Eandi, labor and employment partner at Baker McKenzie.

Even Facebook, which arguably started the trend, indicated it is looking to reconfigure operations over the next decade to enable half of its 45,000 employees to work from home, not all, she said.

“We are seeing these moves to some form of remote work play out particularly in the tech industry where one of the learnings from the shutdowns has been that many workers are able to effectively work from home, and in looking ahead to reopening with social distancing in place, having fewer workers ‘on site’ clearly will reduce the density in the office spaces,” Eandi said.

“With the interminable war on talent in tech, and the important focus on inclusion and diversity in the industry, providing workers with more options for ‘where’ they are physically working from is likely to help attract and retain talent,” she added.

Concerns Arise

Still, privacy and wage and hour questions crop up when clients consider the possibility of permanent work-from-home arrangements, said Mike Elkins, of Florida-based firm MLE Law.

“For your hourly employees, you need to be able to still track the time that they are working, and that they’re not paid for the times that they’re not working,” he said. In the office, that can generally be monitored by when someone goes to a break room, “but if they’re home, that becomes a little bit more difficult.”

Monitoring that situation also walks a fine line between ensuring productivity and being a “creeper,” as Elkins said. But he advises his clients to treat employees like “professionals.”

Potential productivity declines may come into play as soon as this year’s review process, said Martha Doty, labor and employment attorney with Alston & Bird.

There remains a strong view that office culture is important, Doty said.

“For many employers, teleworking has been a viable option during this time, but I’m not certain that all employers and employees want to do it on a permanent basis,” she said. “There is value in coming together in the workplace and collaborating together and interacting together and being a team that can’t be replicated through telework.”

Bias Debated in Court

Doty warned, however, that employers should look carefully at requests for remote accommodations as the virus persists. “It’s going to be difficult and employers have to be careful not to discriminate.”

The Americans with Disabilities Act and the Rehabilitation Act both outlaw employer bias based on disabilities and require reasonable accommodations for disabled workers. Employers have historically argued against telework as a reasonable accommodation. These contentions could be undercut by the coronavirus-forced “social distancing” that compelled companies to let employees to work from home.

Courts for the most part sided with employers that say telework isn’t reasonable because it prevents employees from performing essential job duties that include in-person attendance. But if mass telework during the pandemic shows that face-to-face interaction isn’t actually necessary to perform those duties, workers may be able to counter that argument.

Flexibility benefits parents, people with disabilities, those who care for elderly parents and those with long commutes, said Sharon Masling, a Morgan, Lewis & Bockius attorney who also worked on the 2010 workplace flexibility report from Georgetown.

Masling, along with Feldblum, worked at the EEOC before joining the management-side firm, and said that all employees can benefit from remote work to balance work and personal life. They said companies have been hesitant but productivity doesn’t need to suffer.

“This grand experiment has shown the benefits of flexible work in a way that people haven’t thought about before,” Masling said.

—With assistance from Louis LaBrecque

To contact the reporters on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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