Dana Kravetz, Firm Managing Partner, Michelman & Robinson, LLP.
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It's been more than two years since the Covid-19 pandemic thrust us unceremoniously into the world of remote work. Fast forward to today and many areas of life have returned to normal, though a new normal has taken root within workplaces nationwide: a shift to more flexible working arrangements.
In offices from coast to coast, the traditional nine-to-five looks to be a distant memory. The numbers bear this out. A relatively recent Gallup survey of remote-capable employees reveals that 53% expect to work in a hybrid arrangement from 2022 onward, with 24% anticipating being fully remote. What this indicates is that the future of office work, in many cases, is—at the very least—a hybrid future. And while there may be a temptation to fight this evolution and hold on to the ways of our office-centric past, adherence to old structures could serve to weaken team cohesion and effectiveness.
That’s not all. An insistence on the part of managers to be onsite themselves despite recognized hybrid work schedules can also create real risk for discrimination litigation.
From Broken Policies Comes Risk
As companies continue to implement hybrid work policies, an interesting dynamic has appeared among management clinging to the old status quo: their election to go into the office each day. While this practice is obviously acceptable—and expected—in organizations that haven’t adopted a flexible workplace, the impact can be problematic where a stated hybrid policy is in effect.
Managers who continue to report to the office on scheduled remote working days can create pressure and expectations that their employees do the same, no matter what lip service is paid to the adoption of hybrid schedules. For certain employees, the opportunity to increase face time with the boss and potentially secure new opportunities by virtue of being present in the office is worth the sacrifice of flexibility. Nevertheless, this can foster team misalignment and disengagement and lead to claims of discrimination.
Take, for example, an employee who adheres to her company’s three-two hybrid model (three days in the office and two at home). Despite the policy, her manager is typically in the office daily and, as a result, many of her teammates commute in on their remote days, too. No doubt she feels pressure to be with the team, but by virtue of her childcare responsibilities, she continues to abide by the hybrid work arrangement. Over time, however, she begins to miss out on new assignments and projects given to colleagues who frequent the office, leading her to believe her career progression is being unfairly thwarted.
In this scenario, the employee, who’s simply adhering to her employer’s three-two hybrid model, could have strong grounds for a discrimination case. By setting a conflicting standard around hybrid work—whether intentionally or otherwise—her manager has created a culture of unfairness, inequity and, potentially, discrimination. This is something to be avoided.
Leaders Are Key
Risk management and success of the hybrid model start at the top. Managers themselves must follow office policies—those related to remote work included—and find ways to help teams succeed whether onsite or not. To be sure, challenges to productivity and connection born out of the flexible workplace can’t be overlooked. However, that shouldn’t serve as justification to forgo accepted policies which, in turn, can create a landscape of favoritism and the potential for a toxic working environment.
Remember this: In this new hybrid world, preference can’t outweigh policy. If and when it does, legal risks could be just around the corner.
The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.
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