Seyfarth Synopsis: Global employers have had to become adept at re-arranging the ways in which their employees work over the past two years, both domestically and internationally, with varying modes of mobility.
Business decisions are being made that will impact the direction of workforces, whether return to office working environments, adopting hybrid or fully remote approaches, flexible mobility, or the long tail of workforce dynamic re-stabilization, particularly in light of the talent wars brought about by the Great Resignation. In managing employees through those various issues, whether existing employees, developing talent, or hiring new employees, global employers potentially face a range of discrimination claims that could arise as a consequence of the changing nature of working arrangements. Below we outline some of the key areas to watch out for.
- Hybrid working and assessing performance
Issue: Physical distance from colleagues and managers has changed workplace dynamics for good. Continued hybrid working and a distributed workforce are likely for many white collar/knowledge-based jobs, and some organizations may even be managing workforces that are split between full-time office work and full-time home work. These challenges require a fresh look at how employers set performance expectations and how managers hold their teams accountable to those metrics. Many studies over the past two years have suggested that employee output actually maintained, and even increased, in knowledge-based roles and professional spheres, but traditional methods of assessing value and contribution may not have adapted to reflect output and measurement changes.
Often, those who are physically present in the office are perceived to be harder working and may also be the first port of call for awarding new projects. For those employees who chose or who are entitled to continue working remotely, there is a potential for difference in treatment to arise, particularly if their manager’s style is more focused on in-office working. Such employees may feel that they are disproportionately impacted if management assessment is inherently skewed against remote/distributed working.
What should employers do:
- To help ensure that office-based and remote-based workers receive equal consideration and treatment in assessing performance and access to work projects, careful thought should be given to what productivity actually equates to within the context of your organization. Physical presence alone should not be taken to measure productivity.
- Ensure that the focus of your evaluations is on employee or team output and standards/behaviors (such as communication, collaboration, or compliance, depending on what is essential for your business) that can be universally expected of all employees regardless of location, rather than simply face-time or presentism.
- Make sure that your managers buy in to your organization’s plans for future workforce working arrangements. Also, making sure that they know how to lead and manage remote teams or those working on a hybrid basis is crucial—few managers are given real skills development in this area.
- Conduct year-end calibration of performance grades and related compensation reviews, which will be more critical than ever.
- Promotion and development
Issue: Related to the above, ensuring equality of access to opportunities for development, progression, and promotion is essential to avoid allegations of disparate treatment. Many who work remotely fear that this could affect their career development. Studies suggest that those working remotely can have their chances of promotion impacted by 50%, when compared with their in-office counterparts who may have greater access to managers and decision-makers, providing them with greater opportunities to build working relationships. We have all heard the phrase ‘out of sight, out of mind.’ Frequently this means that those workers who work from the office are at the fore-front of managers’ minds when it comes to handing out promotions.
Imbalance here can lead to a lack of diversity in the workforce, as women, older people, and those with caring responsibilities or medical conditions are often more likely to work remotely on a more regular basis. This is particularly problematic at a time where organizations globally are under stakeholder, legal, and regulatory pressure to improve their diversity and inclusion standards in all areas.
What should employers do:
- Once your organization has determined its preferred approach to post-pandemic working structures, mapping your employee population to see who is working where and how will help you understand any possible pinch points where disparate treatment may arise.
- Regular audits on promotions, training opportunities, and other benefits can be conducted, which will enable any patterns or trends to be easily identified and rectified at an earlier stage. Engaging with the employee population on this topic and explaining that such auditing is being conducted aids transparency, and it may help to reassure those who are concerned about the impact that working arrangements may have on their career progression.
- Return to office mandates
Issue: In some cases, there will be a swift move by companies to ‘return to normal,’ which can mean requiring employees to be physically present. While many employers are breathing a sigh of relief at the prospect of having their employees back in the physical workplace, for many employees this is not welcomed. A mandate to do so may cause stress, a lack of commitment to their company and, potentially, serious practical—and financial—impact.
Those with children or other caring responsibilities (which frequently fall to women) and disabled individuals are often those whose preference is to continue working from home. Employees in these circumstances who have been required to return to the workplace have already succeeded in discrimination claims in the UK, for example. A full-time return to the workplace may have a more significant impact on those in lower socio-economic and minority groups, and those in lower paid roles, who may not be able to afford the cost of care for their dependents. As a result of this, it is estimated that far more women than men are considering leaving the workforce, or scaling back their careers, in light of the issues created by the pandemic. Forcing a return to the workplace may trigger resignations and legal claims, possibly in significant numbers, amongst those populations.
Even outside specifically protected categories of employees, organizations need to be mindful of the desires of Gen Z and upcoming generations in the workforce and their expectations of the future of work, particularly in light of what has been termed the ‘Great Resignation’ and the resulting war on talent.
What should employers do:
- Avoid laying down a blanket policy that employees should immediately return to offices on a full-time basis, which can have unintended consequences. Consideration should be given to whether there are ways in which your organization can help to reduce the burden that may fall on different employee populations.
- Where an employee has a reasonable and legitimate reason affecting their ability to return to in-person working on a full-time basis, an open and constructive dialogue can help to find a solution that works for both parties—for example, by agreeing a transition period over which the employee will gradually return to full-time office working, agreeing that the employee can continue to work remotely for a certain number of days per week, or agreeing that the employee is only required to work in office for certain tasks or meetings. Practical considerations can also be helpful, such as not scheduling calls at times when care is most likely to be needed. Engaging directly also allows an employee to flag any legally protected grounds for their requested work arrangement, such as caring responsibilities, so that more thought can be given to workarounds in order to limit discrimination (and retention) risks.
- Redundancies and restructuring
Issue: Many employers have had to downsize their businesses over the pandemic, and this has disproportionately affected some groups. COVID-19 related retrenchments have hit those with care responsibilities, those in lower socio-economic groups, and lower paid roles hard, and they have reduced the number of opportunities for part-time or supplementary work in some business sectors and the gig economy.
Unemployment rates have been significantly higher for women, across the globe. According to the National Women’s Law Center, women in the US have suffered the majority of pandemic-related job losses and account for 53.6% of overall net US job loss since the start of the crisis. And the position is even more stark for Black women and Latinas—around 9% of Black women and 8.2% of Latinas were unemployed in November 2020, compared to an equivalent rate of 5.9% for white men. When viewed on a global basis, women’s job losses due to COVID-19 are approximately 1.8 times greater than men’s. This situation had led some to label the current status of the global economy as a ‘shecession.’
What should employers do:
- When looking at any restructure or re-organization, carry out an impact analysis to ensure that there is no disparate impact on one or more groups or protected categories of workers, making sure that the analysis is fit for purpose in the pandemic environment.
- Once any retrenchment or restructuring processes commence, appoint a neutral team or subject matter expert to review proposed impacts and carry out any stress testing of disparate impact before any communications/decisions are finalized.
 Vaccine mandates are a topic all of their own and are therefore not covered in this article.