Corp! Magazine - July/August 2023

For many employers, the COVID-19 pandemic presented a new challenge of determining whether certain jobs were capable of being performed remotely and, if so, determining which policies and procedures to institute to enable them to be performed remotely.

For a time, this seemed to increase employee productivity, likely arising from many factors, particularly including employees being able to work longer hours due to a lack of commute to work. In fact, studies have shown that on average, individuals working remotely tend to work almost 50 minutes longer than they would if they were physically present in an office.

US Productivity Falls in First Quarter 2023

Notwithstanding the increase of time worked, in the first quarter of 2023, productivity for US employees fell by 2.1% while hours worked increased by 2.6%. This trend may indicate that even though employees are working longer hours, their productivity is decreasing.

There are numerous factors which could explain why employee productivity is decreasing, including employee burnout, mass layoffs, and the “quiet quitting” phenomenon.

Impact of “Quiet Quitting”

In a recent Gallup study, it was determined that “quiet quitters” – employees who do the bare minimum required for their jobs – make up at least 50% of the current workforce. In looking further into this trend, Gallup found that there was a significant decline in engagement and employee satisfaction among remote and/or hybrid working Gen Z and younger millennials (those below age 35). In the same study, it was discovered that these employees are less likely to believe that there is someone at work who cares about them, encourages their development, and provides opportunities to learn and grow. Even more concerning was the discovery that less than four in 10 young, remote or hybrid employees had a clear understanding of their employer’s expectations for them.

How Can Employers Engage Employees?

Although there are very few remaining COVID-19 restrictions within the workplace, many employers have opted to continue to allow remote or hybrid work. Employers who chose to voluntarily permit remote work should adopt and maintain certain parameters for remote or hybrid work to ensure that employees working remotely are still connected with the workplace and that they are clear about their workplace expectations. Employers should consider taking the following precautions:

• Written Remote Work Policy. Implement a written policy outlining the parameters of remote and/or hybrid work, including which positions are eligible for remote work, whether an application to work remotely is needed, how many days per week employees are required to be in the office, what equipment will be provided to employees, what security measures must be taken, etc.;
• Written Remote Work Agreement. Require remote and/or hybrid employees to sign agreements which outline the specific job duties the remote working employee is expected to perform, productivity and performance requirements, the hours of work, any obligations with respect to recording hours or work performed, describing that the ability to remote work is a revocable privilege, and describing what measures will be taken if the employee fails to meet productivity and/or performance requirements;
• Emphasize Mentorship and Workplace Connections. Foster mentorship opportunities and connections; and
• On-Site Interactions. Create opportunities for remote workers to come into the workplace to interact with coworkers (e.g., in-person meetings, social events, retreats, trainings, etc.).

What Options Do I Have if My Employees Still Refuse to Engage?

After implementing these measures, employers may still face significant problems with employees failing to meet productivity and/or performance requirements. In these instances, employers are permitted to take disciplinary action against the employees, up to and including termination of employment.

Employers who have performance and productivity concerns regarding specific remote working employees should ensure that the issues are well-documented and discussed with the employees. Those employers with carefully drafted remote work agreements will be able to point to the specific requirements and duties to illustrate that the employees are not abiding by the requirements of the remote work agreement, and that certain disciplinary action may be taken. Those employers without remote work agreements run the risk of implementing their remote work policies on an inconsistent basis, leading to unequal treatment of employees.

Employers are left with several options when faced with employees who continue to present productivity and/or performance concerns. To provide a few examples, employers can revoke an employee’s ability to work remotely and instead require them to come into the office, place the employee on a performance improvement plan, require the employee to keep track of hours worked and/or work performed, issue verbal or written warnings, or proceed with termination.

Legal Obstacles to Remember

Employers considering taking disciplinary action against remote employees with productivity or performance concerns should ensure that they have sufficient documentation to show that the employee in question was underperforming.

Employers who continue to allow employees to work remotely must ensure that they are abiding by all applicable federal and states laws, which may include laws in the state the employer is located, as well as the state which the employee is working remotely. In particular, employers should confirm they are abiding by applicable tax, unemployment insurance, and workers’ compensation obligations, in addition to state-specific paid leave laws (including medical leave).

This article originally appeared in the July/August 2023 edition of Corp! Magazine.