Managing Employee Risk: 5 Key Trends as Work Evolves

5 key trends to watch out for as the hybrid workplace evolves, and how to prepare for the risks.

10 March 2022 8 mins read
by Jennie Clarke

Since the first Covid-19 lockdowns in March 2020, the passage of time has seemed at times excruciatingly slow, and at others, too fast to keep up with—especially for employers trying to navigate the complex web of employment laws and regulations. Through countless iterations in our understanding of health and safety concerns during the pandemic, businesses have also had to cope with a historic paradigm shift in how we recruit, hire, train, manage, and retain remote employees.

Companies are still scrambling to address pandemic-era issues while shoring up preparations for a world where the virus is under control. In this frenzied environment, employers and employees can all agree that nothing can bring back the old “normal” of life before the pandemic. Forward-thinking business leaders must keep an eye on five key trends that will make or break success in the post-pandemic world.

1. Recognizing the blurry lines of hybrid work

Moving to a work-from-home model has blurred our collective understanding over what is and is not acceptable work behavior. Most of us have witnessed minor, usually harmless ‘interruptions’ to business professionalism, such as a child or spouse darting by in the background of a video call, or trying not to laugh when you discover your boss is conducting a team call in their pajamas. Minor gaffes aside, however, this model has created some concerning compliance issues.

Virtual workplace harassment has become an ugly byproduct of the remote workplace, with 38 percent of employees in a recent poll experiencing remote harassment through the phone, chat apps, video calls, or email. Employers must acknowledge this uncomfortable reality and reinforce or update reporting protocols to decrease incidents and mitigate risk.

2. Preparing for a more polarized employee population

When millions of employees return to the office over the next few months, it will become all too clear that the world as it existed in March 2020 has little in common with the world as it exists today. In the midst of the worst pandemic in a century, we also witnessed the gross injustice of George Floyd’s murder by a police officer followed by a national discussion on race and inequality, the tumultuous 2020 U.S. presidential election and the January 6th insurrection at the U.S. Capitol, and vociferous debates on masking, vaccines, and the government’s role in managing the outbreak of Covid-19.

Prior to this time, for the most part offices tended to be apolitical sterile environments where self-expression was generally modulated. That world has changed, and so must our expectations of working in an office. Employers must be prepared for the fact that Americans are more politically polarized now than at any time in modern history. While no single employer can turn down the political heat that has engulfed the world, they can and should, recognize that every employer has a role to play.

Now is an opportunity for employers to develop policies and training around increasing civility in the workplace. Relatedly, forward-thinking leaders must be cognizant of the fact that the wounds of the last two years are still relatively fresh. And in order to begin the healing process, many of their employees will need access to additional mental health services, along with a supportive and caring manager and work environment.

3. Understanding trust and loyalty after the great resignation

Ask virtually any CEO about the current labor market, and you will likely receive a lecture about the difficulty they are having attracting and retaining top talent during the so-called “Great Resignation.” While this labor dynamic is concerning, it is not entirely surprising.

During the early months of the pandemic, as most organizations were facing one existential crisis after the other, millions of employees were told that they were being furloughed, resulting in an unprecedented 13% unemployment rate in the second quarter of 2020. The proverbial tables have now turned. Now there are not enough qualified and willing employees to fill open requisitions, and employees have much more leverage in negotiating the terms and conditions of their employment, while deciding whether to stay where they are, or take their skills to another company.

Those companies who rethink and retool their office culture before employees return in droves, will frankly do much better compared with those employers who naively believe that the last two years was but a blip on the radar.

4. Adopting authentic DE&I efforts

For those employers who strive for greatness, attention to authentic Diversity, Equity, and Inclusion (DE&I) has evolved from being a nice corporate refrain, to becoming an essential minimum requirement for being considered a first class employer. In order to build and maintain a strong DE&I culture, employers should use the opportunities that a reimagined office environment brings to the discussion. Everything from recruiting, hiring, promoting, mentoring, and retaining employees, should contain DE&I elements.

Authenticity in DE&I is also paramount. Employees who take DE&I seriously are not interested in hollow promises, but are judging their employers on KPIs when it comes to creating a more diverse, equitable, and inclusive environment and work culture. At the same time, firms must be careful that any DE&I efforts, even well-intentioned ones, do not result in unlawful “reverse” discrimination. For most employers, having a robust and legally compliant DE&I program requires dedication and commitment, from the head of the organization on down.

5. Preparing for more pro-employee laws and regulations

In the coming years, employers will continue to face new laws governing the employer-employee relationship. While many cities and states press ahead with employee-friendly laws, the current Congress and the Biden administration, are eager to reassert the federal government’s role in adopting laws and regulations that favor employees. True, many of these issues continue to be partisan (e.g., paid family medical leave, paid sick leave, increase in the federal minimum wage), there are certainly areas that have bipartisan support. One example is the passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, recently signed into law by President Biden. This new law, which was inspired by the MeToo movement, will carve out claims of sexual harassment and sexual assault from mandatory employee arbitration agreements.

The pandemic highlighted the important role Human Resources has in directing and protecting the workplace. As we emerge from it, employers must continue to listen to their HR professionals in order to maintain a culture of compliance around employment laws and regulations.

Utilizing effective compliance tools

In all five of these hybrid workplace trends; the common denominators are communication and compliance. Employers who are committed to taking advantage of the many exciting opportunities a permanent hybrid work environment offers, need to invest in tools that will advance their efforts. In addition to properly training employees and managers in all areas of compliance, employers have to face the reality that their employees may be engaging in problematic and even illegal behaviors, using the many online communication tools at their disposal. This is especially true as the hybrid and remote environment becomes permanent for many employers.

While constantly monitoring all employee communications is neither practical nor productive, and can lead to potential concerns related to protected speech under state and federal employment law, the ability for designated and trained professionals within the organization to intelligently and quickly retrieve and investigate employee communication, is an important component in creating a work culture that prides itself on robust compliance measures.

The Wrap

How companies respond and adapt to the post-pandemic world will have far-reaching consequences. Those employers that effectively manage employee risk, particularly around employees returning to a hybrid schedule and making remote work permanent, will be better positioned to excel while avoiding dangerous pitfalls.

Fostering a culture of compliance is even more challenging now than it was before the pandemic. Yet those companies that take these issues seriously while incorporating the right compliance tools, will be in the best position to succeed in the marketplace and the talent race.

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Author Bio

Adam Rosenthal is an employment law partner with the international law firm Sheppard Mullin. Based out of the firm’s San Diego and Los Angeles offices, Adam represents a broad spectrum of companies in all areas of employment law before federal and state courts and arbitration forums across the United States.

Adam is the author of Managing Employees Without Fear: How to Follow the Law, Build a Positive Work Culture, and Avoid Getting Sued (Society for Human Resource Management; ISBN: 1586446649). He also serves as the Co-Editor of the California Labor and Employment ALERT, a bi-monthly newsletter that provides HR professionals and attorneys in-depth analysis of recent case law, statutes, and regulations.

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Published 10 March 2022

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