Legal Intelligencer
(by Janet Meub)
On March 19, 2020, in response to the worldwide spread of the novel coronavirus, Pennsylvania Governor Tom Wolf issued an Executive Order “…Regarding the Closure of All Businesses that are not Life Sustaining,” https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319-TWW-COVID-19-business-closure-order.pdf. Many Pennsylvania workers were essentially locked out of the office. Governors throughout the U.S. issued similar orders, though what workers were deemed “essential” versus “non-essential” differed from state to state. Initially, attorneys in Pennsylvania were non-essential, but Ohio attorneys, for example, were essential! Gradually, businesses reopened, but not all employees returned to the office. We learned from the COVID-19 Pandemic that, for better or for worse, remote working in many employment contexts is here to stay.
Some professions and business models have been more adept at pivoting to remote work than others. Educators have been teaching cyber school and online college and graduate school classes for years. Telemedicine, once a novel way to reach patients in rural, underserved communities without access to hospitals or medical specialists, is now available to anyone with a computer or smart phone.
Many employers have reaped many benefits from remote working. Office space per square foot is no longer a concern with many employers declining to renew long-term, commercial leases. It has been widely reported that employees working from home are putting in longer hours and can be just as productive at home as they were in the office. There is no commute. Data entry at home is the same as data entry at the office – except without the overhead.
No change comes without challenge, however. Remote employment requires employers to re-examine how we manage and supervise employees. Take, for example, the legal profession. The Rules of Professional Conduct governing the legal profession require that “lawyers within a firm make a reasonable effort to establish internal policies and procedures designed to provide reasonable assurances that lawyers in their firm conform to the Model Rules of Professional Conduct. See, 5.1 Responsibilities of Partners, Managers and Supervisory Staff. Additionally, lawyers are responsible for their non-lawyer assistants and staff. Rule 5.3 of the Model Rules states, “Non-lawyers within the firm must be given instruction and supervision concerning ethical aspects of their employment.” Rule 1.0 (c) extends the definition of “law firm” to the legal department of a corporation or other organization. How does a supervising attorney ensure that associate attorneys and support staff are abiding by the rules of professional conduct in a strictly remote or hybrid remote workplace?
In the law firm setting, onboarding of new hires should include an overview of the ethical obligations of the employee. An experienced law firm administrator will review not only the firm’s healthcare benefits, 401K options, and paid time off policy, but he will also remind new attorneys and support staff of their duty to keep client information confidential when they are working away from the office. We hear people talking on their cellphones in elevators, in stores, and on public transportation daily. While many have no qualms discussing the most intimate details of their lives or medical conditions in the grocery store aisle, lawyers owe their clients the duty of confidentiality. Commenting on Facebook midafternoon, “Hope the XYZ deal closes soon, so I don’t miss Chelsea’s cheer team trip to Disney,” is problematic. Many remote-working parents have in-home childcare assistance. Caution should be taken when discussing client information around visitors to one’s home. Keeping sensitive paperwork and conversations regarding client business and legal issues behind one’s closed home office door is common sense, but are all employees compliant?
What can employers in any industry or field do to better manage their remote work force?
Communication
Whether it is the legal profession, a start-up company, a school district or an insurance company, communication through periodic teleconferences or Zoom meetings with departmental groups and/or staff is key to reinforcement of existing policies and education as to new policies and procedures. Virtual meeting fatigue has plagued our national psyche for the past two years. But in the remote environment, Zoom and Teams meetings are a necessary tool to ensure that remote-working supervisors and their direct reports are aware of the current company policies. Uniform application of policies is the goal. Are supervisors approving overtime in a consistent fashion department-wide? Are all supervisees aware of the changes to the company records tracking system?
A company intranet is another way to reach the remote employee. The intranet can be the repository for the employer’s policies and procedures, cafeteria and qualified transportation plan reimbursement forms, fringe benefit offerings, and employee resources. The intranet can also be used to make company-wide announcements, share news, introduce new hires, list possible conflicts of interest, and schedule meetings. Better informed employees are easier to manage.
Mentoring
When working from home, the opportunity to walk down the hallway to speak with a colleague about a perplexing issue is eliminated. Where you once ran into Larry from Underwriting reheating his coffee in the office kitchen, there is only your cat at home. One of the benefits of working in a legal department, law or accounting firm or department of a national corporation as opposed to being a sole proprietor/practitioner, has always been the ability to develop an informal or formal mentoring relationship with a more experienced colleague and learn from others. Brainstorming strategy with a partner or running an idea past your preceptor is invaluable assistance and a built-in safeguard against bad practices. Whether it is best for an employer to assign mentors or encourage employees to pick their own may depend on the nature of the business itself.
Working remotely can be isolating in any business or industry. The importance of establishing mentoring relationships is crucial to the success of any company, especially where the workforce is remote. Not every student is comfortable raising his hand in class. Not every employee is comfortable asking a question in a virtual meeting, exposing inexperience or ignorance on a particular subject to all meeting participants. It is incumbent upon managers and supervisors to create opportunities for employees to check in “one-on-one” to ask questions, seek help, or clarify an assignment. Frequent communication via telephone or virtual meetings fosters an atmosphere of collegiality, collaboration and sharing.
Supervision
With many companies doing away with a physical office all together, it is important to give remote workers the experience of meeting supervisors, managers, and co-workers in person. One is more inclined to pick up the phone to ask a supervisor a question or suggest a new idea if one has had a positive, in-person interaction with that colleague. Employee retention is something we hear about on the news every day. Establishing personal connections with co-workers makes one feel valued and a part of the larger organization. In addition to “one-on-one” meetings via telephone or Zoom, employers should try to have occasional “meet-ups” such as coffee, lunch or happy hour.
“Meeting” with one’s supervisor is less stressful when it is common occurrence. Whether it is a weekly ten (10) minute phone call or a Zoom meeting, touching base at regular intervals is a positive exercise. Company policies, procedures or goals for the project at hand can be addressed and confirmed. A remote employee who is a reluctant to ask questions in a group setting may be more comfortable seeking direction in this forum. Not all supervisors are effective communicators. Being able to reinforce a certain policy or confirm expectations for a particular assignment helps the supervisor and the supervisee. No one will get too far afield from the end goal if there is an open and frequent dialogue.
In the remote work setting, the onus is really on the managers and supervisors to stay actively involved in their direct report’s work – whether it is a bid proposal, a legal brief, or the final proof of a report headed to print. Out of sight can really be out of mind when we do not see each other on a daily basis. Obviously, keeping a regular employee review schedule is just as important in the supervision of remote workers as it is in the traditional office setting. Training one’s employees is not any less critical to the success of the organization when those employees are sitting in their home offices. In fact, managers and supervisors must give the training and educating of remote workers even more attention. Remote workers miss the on-the-job learning that comes from daily exposure to seasoned veterans in their fields in the traditional office setting.
Remote work is here to stay – probably one of the few good things to come from a global pandemic. Attending meetings, conferences, court hearings, concerts, and even church services virtually is certainly not the same experience as being there in person. But, remote work has allowed for many benefits for employers and employees alike. Employers who make the effort to effectively communicate, mentor and supervise remote workers will reap the benefits and ensure continued success in their organizations.
Janet Meub is senior counsel in the Litigation and Employment and Labor groups of Babst Calland. Ms. Meub has significant experience in the areas of employment and labor law, professional liability defense, insurance coverage and bad faith litigation, toxic tort litigation, nursing home negligence, and medical malpractice defense. She has a diversified practice that includes defending employers, healthcare providers, law enforcement and other professionals, and non-profits, at all levels of civil litigation through trial. Contact her at jmeub@babstcalland.com or 412-394-6506.
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Reprinted with permission from the September 15, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved.