EACCNY “Post-Pandemic Labor Law” Series | Working from Home and the Challenges of Remote Supervision

With the help of our members, we are creating a Thought-Leadership series on the impact of COVID-19 on Labor & Employment from the perspective of both sides of the Atlantic. Today, we present Philip Berkowitz, Shareholder at Littler Mendelson in New York, and Ronnie Neville, Partner at Mason Hayes & Curran in Dublin, who will address “Working from Home and the Challenges of Remote Supervision.” |

Whether in Europe or America, there are advantages and disadvantages to working from home, both for employers and employees.  For employees, benefits include greater flexibility around how to manage the working day, and significant savings in time and cost with no longer having to commute to work (not to mention the removal of associated stress). For employers—and particularly those who had considered, pre-pandemic, that working from home was not a viable option—the benefits have included the ability to retain employees, flexibility in hours and schedules, and the ability to reassess the need to maintain costly office space.

However, employers and remote workers also face different (and for many, new) challenges that come with remote working, which include a very different dynamic, and sometimes more difficult relationship, between a subordinate and his or her manager who is supervising remotely. Certain roles appear better suited to remote working, and the more senior in tenure an employee is, the easier it may be for them to work remotely and for their manager to supervise remotely.

This new normal of interacting with colleagues, whether they are peers, subordinates, or at a higher level in the corporate hierarchy, presents challenges to employer and employee alike.  After all, getting the job done requires effective engagement with co-workers as well as customers, clients, and other third parties.  Deprived of in-person interaction, people may feel, at least initially, that they are less able to learn and to teach, to persuade and riposte, to effectively present their abilities, and to gain wisdom from colleagues.

According to the International Labour Organisation (“ILO”), more than 1 in 6 people age 18–29 stopped working during the first few months of the pandemic, and younger workers’ hours have fallen by up to 23%. The “lockdown generation” risks a decline in their skills, productivity and mental health.

New hires, many of whom may not have set foot in the physical workplace, may inevitably lose out in various ways, deprived of experiencing the organisation’s culture in a traditional office setting. It also appears that new hires, and often-younger workers, may have more difficulty with remote supervision than many more experienced or senior peers.

Many graduates starting out in their career will now have an unusual start to their first professional jobs.  Having been on-boarded remotely and working entirely from home, they will miss out, at least initially,  on the traditional in-office learning environment and the intangible benefits that come from face to face interaction with peers and managers.  This will curtail the opportunity to develop a professional network and to foster relationships with peers and senior staff/managers, which is crucial to career advancement.

Employers, too, may lose the opportunity to get to know their new employees in quite the same way as they did those with whom they worked in a physical setting.

However, the pandemic is of course negatively affecting employees regardless of their age.  Many have lost their jobs; they have suffered pay cuts and lost opportunities; and, for older workers in particular, the challenge of finding a new job in a new work culture may be particularly daunting.

Supervision and direction

Managers supervise and manage their teams in different ways, depending on their individual styles.  Many managers are quite hands-on.  This can be a very effective way of transferring knowledge and abilities, and can allow for ongoing, continual assessment of job performance, which can be beneficial to employee and manager.  On the other hand, of course, micro managing can be oppressive and may discourage individual thinking.

At the other extreme, some managers adopt a laissez faire approach to management and supervision.  While this approach may inspire confidence and creativity, many employees require supervision and direction, and so it can deprive employees of the ability to learn and grow, and result in wasted time, effort and frustration.

Many managers have introduced new and demanding protocols for the review of work product.  These protocols may be non-traditional and often have not been vetted, either by the organization as a whole or by the trial-and-error of good experience.  Most employers have been challenged by the need to monitor work remotely and principally through technology, and some have introduced technological aids such as mouse tracking software and video recording.

These practices may cause problems of trust and suspicion, and carry with them the risk of damaging the organization’s culture, as well as giving rise to potential legal and/or data privacy risks.

In addition to cultural challenge, different approaches to supervision can affect the employer’s ability to comply with important employment and labor law obligations.  For example, employers must be sure that their managers monitor the workload and worktime of subordinates.  Employers must pay employees for the hours they work; employees must abide by Company policies that may limit the number of hours they may work, and take their proper rest breaks and holidays.  Hindrances on the ability to monitor these compliance issues can heighten the risk of labor law violations.

In addition to legal restrictions on time, many employees have been as busy, if not more busy, during the Covid-19 pandemic and, for some who have been left to their own devices, there is a risk of over-working and potentially, burnout.

The practical limitations faced by managers who are unable to supervise staff as they would in the traditional way in a regular office setting is resulting in considerable angst for some employers and employees.

Perhaps paradoxically, some employers have seen an increase in day-to-day conflict among employees, no doubt caused, in part, by the difficulty in communicating.  When we are left to email or texting as the way to convey thoughts, misunderstandings can be frequent.  This is particularly the case when manager and subordinate work on different schedules, and if there is already tension in a relationship, this can be heightened by the current environment.

The future

It is clear that most businesses will not revert fully to the traditional way of working and that remote working is being, and will be, embraced more readily.  Achieving the right balance in the supervision and direction of staff, but also, in their integration and development, particularly new joiners, will take time to perfect.   For the future of work, organisations and managers will need to continue to adapt, develop and improve their methods and systems for the management of employees working from home.

Employers will be challenged to re-engage their workforce.  We will all be returning to something different, and employees may have a fear of the unknown—not to mention of what may be the next wave of the virus.  Employees who have grown used to the safety of their homes may be uncomfortable working again in an open environment, close to other employees.

Employees may also be facing bereavement as a result of illness in their family or among friends, and unprecedented financial insecurity.  This can result in polarization in the workforce.

Employers will need to build appropriate feedback channels, be prepared to accommodate employees who are anxious or find the new work environment challenging, and to communicate transparently.

There is no question, though, that remote work is indeed part of the new normal.  Companies have surprised themselves by, overall, adapting effectively to this new environment of working.  Much of corporate America is indeed in no rush to return employees to their offices, and (as the New York Times put it in a recent article), are racing not to be the first back, but the last.  “White-Collar Companies Race to Be Last to Return to the Office” (New York Times, May 8, 2020).

In light of the likelihood that remote work is here to stay, employers will need to identify structures that will require change.  They will need to strengthen remote work policies, and provide training to managers in effective supervision and communication.

Employers will also need to reassess their compensation plans, performance planning and goal setting.  There will undoubtedly be the need in many cases to restructure the workplace in light of this new way of working

Employers will also be challenged re-engage with employees, and to retain talent in this changed landscape.  They will need to identify new benefits that may have been made essential by remote work, such as childcare, elder care, alternative transportation options, and flexible work arrangements.

Employees and employers may have confounded expectations and demonstrated that they can work in this new environment, but the challenges will be frequent, different, and perhaps unpredictable.

AUTHORS:

Stay tuned for more on this series! We hope you enjoy these Thought-Leadership pieces written by our members.