COVID recovery trends: Management & legal challenges, part 2
Review how current trends, from remote tech to the DEI and wellness programs, will shape the future workforce.
Editor’s Note: This is the second installment of a series looking at Harvard Business Review predictions for challenges business managers will face during the COVID recovery. The first part of the series is available here.
By all accounts, Americans are on a bumpy road to recovery from the COVID-19 pandemic. Along with the tragic loss of lives, COVID disrupted in-person communication and commerce, with lasting effects on how people live, work, and connect.
On January 13, 2022, “Harvard Business Review” (HBR) published a forecast of challenges business managers will face during this COVID recovery season, titled, “11 Trends that Will Shape Work in 2022 and Beyond.” Building on those predictions, this two-part article examines some of their legal implications.
Part one of this article focuses on the first five trends. The remaining six management challenges HBR predicts are as follows:
Trend 6: Measuring performance using remote technology. It is hard to evaluate an employee’s performance from a distance. According to HBR, “This leads to inaccurate and potentially biased performance ratings based upon where employees work rather than the impact they are having.”
In an HBR survey of 3,000 managers, nearly two-thirds believed in-office personnel are higher performers, and three-quarters believed in-office workers are more likely to be promoted. These beliefs can stack the deck against remote workers.
HBR recommends using “the same tools that employees are currently using to work in a virtual environment,” and “new technologies [that] will be able to provide background information about the other people on the call.”
Employment evaluations are inaccurate if they are swayed by biases. If the criterion was the employee’s national origin or gender, rather than location, it would clearly be discriminatory. To combat the implicit bias, managers should consider regular discussions online with remote workers.
Trend 7: Managing a hybrid workforce and returning to the office. HBR reports that some high-profile companies may eventually revert to their pre-COVID mode of work. This reversion may say more about management than employees.
HBR identifies the following incentives. Companies with lagging performance may scapegoat virtual workers. Those that experience increased employee turnover may think their virtual workers are the cause, though that may not be so. Some employers are concerned that distant employees are working at multiple jobs; others fear a loss of the company’s culture. . . . Demanding employees return to the office will only further exacerbate turnover rates.
Such business considerations have legal implications. A “return to the office” mandate may violate commitments made to employees who joined during COVID or enforced procedures unfairly. Any major changes in personnel policies should be vetted by human resource professionals and employment practices attorneys.
Trend 8: Wellness will become the newest metric. “In 2022, organizations will add in new measures that assess their mental, physical and financial health . . . to more accurately predict employee performance and retention,” HBR predicts.
It has already begun. As of 2020, 94% of large employers surveyed had already invested in employee well-being programs, including increased funding for mental health benefits (85%), physical well-being (50%), and financial well-being (38%).
From a legal standpoint, the key consideration of such benefits should be to confidentiality. A single breach of confidentiality by benefit providers could damage a wellness program’s integrity.
Trend 9: A ‘Chief Purpose Officer’ in the C-suite? Should businesses have opinions on social issues? HBR, citing another survey, noted that “three out of four employees expect their employer to take a view on the societal and political debates of the day.” But the survey also found that “employee engagement can drop by one-third when employees are disappointed with their employer’s stance[.]”
Some organizations are considering a Chief Purpose Officer. This C-level officer’s role would be a combination of duties related to some aspects of human resources, legal and communications. “Mission Director,” might be a more fitting title, so the role and the message align with the company’s mission statement.
The Supreme Court has held that organizations have free speech rights. As with any form of speech, the speaker’s message may turn away some people, including some employees.
Trend 10: Sitting, “the new smoking?” Many work-from-home employees have been sitting too long at their home desks. Getting up and moving around can prevent embolisms that could lead to strokes. HBR commented, “Some companies will go too far and elicit a backlash from employees who don’t think their employer has a role in their physical health. These physical wellness programs also carry DEI [diversity, equity and inclusion] risks, as they could harm the engagement of employees with disabilities.”
As with any intrusion into employees’ health matters, don’t force it.
Trend 11: DEI outcomes may worsen. HBR’s final trend brings together many of the prior ones: “[I]n a hybrid world, women and people of color prefer to work from home compared to white men. Given that, without intervention, gender wage gaps will widen and the degree of diversity within leadership benches will weaken. Without greater intentionality, underrepresented talent could be excluded from critical conversations, career opportunities and other networks that drive career growth.” DEI thus forms the bookends of the HBR article, and this one.
Empathy is key to facing these challenges: Creating policies that empower every earnest colleague to perform at his or her best, recognizing their achievements, and rewarding them for their dedication to the organization and its mission.
Louie Castoria is a partner in the San Francisco office of Kaufman Dolowich & Voluck LLP, a mediator, and an Adjunct Professor of Law at Golden Gate University. This article does not provide legal advice. The views expressed are the author’s and not necessarily the firm’s or its clients’.
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