The Changing Workplace, Part 1: Why Remote Work Is Gaining Permanence

From perk to permanent? The shift to remote work could be the new normal of office life. Claire Deason, an attorney at Littler Law, shares legal considerations for companies that are formalizing their work-from-home policies in a post-pandemic workplace.

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At the onset of the pandemic, many companies set up their employees to work from home as a response to shelter-in-place orders or a health and safety precaution. Now many are realizing that remote work is, well, working. 

We reached out to Littler, an international labor and employment law firm Workday works with on product compliance issues, to get their front-line insights. Claire Deason, an attorney and shareholder at the firm, and a member of the firm’s Wage and Hour Core group and COVID-19 Task Force, says that the current climate is prompting conversations about how to make telecommuting a longer term—if not permanent—option for employees. 

In part one of this two-part series about the changing workplace, I chatted with Deason about factors that may influence employer policies and protocols for remote work beyond the age of COVID-19. 

Is the lingering impact of the pandemic making companies consider a long-term remote work policy? 

For many, yes, it is. I've had a lot of my clients say, “You know, this is working better than we thought, and now we want a new telecommuting policy and a new program for time keeping so that folks can work from home more if they want to.” 

A big part of the getting-back-to-work effort in many different industries is asking, “how are we going to be able to let people work from home when they need to?” Because frankly, folks may still be getting sick in the coming months. Employers are trying to find practical and functional ways to allow people to keep working and stay connected when they might need to be at home with a loved one, caring for kids out of school, or at home for a quarantine period. Welcoming and facilitating telecommuting is a big part of planning for how work will look long-term as we weather this storm, even after the local orders are lifted. 

Has COVID-19 made an impact on how companies generally view telecommuting? 

It really depends on the industry. Some industries can be more hesitant to change, often because they are under very strict regulatory requirements or because they are massive corporations with hundreds of thousands of employees. So, practically, change can take a long time. And many companies are a bit “old school”—their leadership and culture thrives on face-time and collaboration. It’s a scary shift to move away from that, when it’s a part of what the company is all about. 

But this particular situation has forced change on industries and companies that might not have explored it before. And frankly—I love that.  I love to see my clients trying something out because it's worth a shot, even if it’s only just to know we're not just assuming that it won’t work.

In addition to working from home, many employees are also handling more childcare obligations since childcare facilities and schools closed due to the pandemic. How should employers factor that reality into their plans for returning to the workplace? 

There's this gap right now between the decisions made at the government level—about whether schools, summer camps, and childcare facilities will be open—and at the business level for when folks will return to workplaces.

The reality is that a lot of employees have kids, and if their kids can't go to school, but the parents have to work, that's a problem employers simply have to solve. Companies need to figure out a way to be flexible with employees around their childcare obligations And if they haven’t done it already, get a very clear and practical awareness of the fact that it’s women doing most of this work at home with kids out of school, with family members ill during this pandemic. That’s not the case for everyone, of course, but overall we see that the good old impossible task of balancing work and home—which has always disproportionately burdened working women—is a heck of a lot harder for those women now. 

Most employers are deeply committed to diversity and equity, but I think it behooves every employer to be very tuned in to what is happening to the women who work for them right now, and find ways to be flexible, keep them engaged, keep them moving forward and upwards. We need to ensure we retain the strong and skilled workforce we have, and we want to keep the potential for diversity and equity growing, just as it hopefully was before pandemic times. Otherwise, I foresee a big decline in engagement, efficiency, and of course then, performance and promotions for a lot of women. 

Before the pandemic, remote work was largely limited to salaried office jobs. But COVID-19 forced many companies to shift their entire workforce, including hourly employees, to work remotely. What are some of the considerations for creating a remote work policy that addresses the compliance issues associated with hourly employees?

Working from home is a wage-and-hour challenge; when employees are paid by the hour, employers need to be able to track what hours they're working and what hours they're not. That’s a lot easier to do when the employees are down the hall from us. So, timekeeping and compensable time is the biggest challenge for employers to address when hourly (non-exempt) employees are working from home.

Of course, that's a challenge that existed before pandemic times, but now we have unprecedented numbers of employees who are doing their job remotely. It creates IT challenges to getting those timekeeping systems up and rolling for non-exempt employees who were not previously working from home. It creates challenges to time tracking in terms of, when do we instruct employees to begin their time clock? Are we capturing all of the truly compensable activities they're doing from the start of their work day to the end of that day? In the states where meal and rest-break compliance is required, how do we get employees to track that in a consistent and compliant way? And how are we ensuring that it's accurate? 

It sounds like technology, especially time-tracking applications, will be key to facilitating remote work.

Yes, timekeeping technology is really important. I work with a lot of different motor carrier and energy companies, particularly oil field services, on wage-and-hour issues. Those types of industries have employees who are not working from home. They're working out on an oil rig, or in a delivery truck. And how do they track their time? They often do it using apps on their phone.

As we return to working in offices, I think we'll still see a lot of situations where folks aren't full-time but are telecommuting or working onsite periodically – like I said, even once local orders are lifted, we can still expect quarantines, we can still expect lengthy periods of illness and care for loved ones. The employer needs a time-keeping system that will work when the employee is working in a variety of different spaces.  

What else should employers keep in mind with time-keeping applications?

When you bring on technology, it's important to ensure that you understand how data security and privacy are being handled, and that your software partners are aligned with you on how they approach these questions.

Are there any policies or practices companies should put in place to ensure the accuracy of the data that goes into their system?

Timekeeping for telecommuting tends to be only as accurate as the timekeeper. So, yes, employers have to ensure they have a policy that requires accurate recording of start and stop times, requires meal and rest breaks at the proper intervals, and prohibits “working off the clock.” Make it clear that the employer pays for all hours worked, and overtime at the required rate. If you want to require advanced approval for overtime, go for it, but also make it clear that the company pays for overtime at the required rate—even if it wasn’t approved. Beyond those essentials, I like to draft policies that require employees to report any requests that they work off the clock—we want to ensure we know about those events if they’re happening so we can correct the problem—and build in a process for the employee to review and approve their recorded time, and certify that it’s correct. And then, training. Show managers how the timekeeping system works, make it very clear what is prohibited, and what is required. Then finally, follow through on the policy.  

In part two of this Q&A, employment attorney Claire Deason of Littler discusses considerations for workplace safety policies amid COVID-19.

The information contained in this blog is provided for informational purposes only, and should not be construed as legal advice.

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