Adapting to a New Hybrid Law Firm: The Employment Law Conundrum
10.26.2021
Do you look back with fond memories to a pre-pandemic time when law firms maintained a physical office bustling with attorneys and staff, clients stopping by, and phones ringing off the hook? Now, more than 18 months into a pandemic, law firms are facing that their brick-and-mortar workplaces have been turned on their heads. Traditionally gun-shy about remote work, law firms are learning that they may not be able to put the genie back into the post-pandemic bottle.
As a direct result, the term “hybrid office” has officially entered lawyers’ daily and seemingly permanent lexicon.[1] While many firms are actively embracing a hybrid concept, others are entering the discussion only because they fear they have no choice. Some surveys show that that a majority of workers prefer to continue performing remote work, albeit in differing degrees, even after all restrictions are lifted.[2] Although hybrid may seem simple at first blush, law firms are finding (and will continue to find) the need to make complicated and nuanced decisions about how to maintain efficiencies in a new workplace while staying compliant with the ever-changing world of employment law.
X & Y Law Firm LLP
Imagine a mid-sized law office – X & Y Law Firm, LLP – a real estate practice with 25 staff members, including nine attorneys and four paralegals, working from a single New York state office location (before the pandemic, of course).[3] X & Y thrives on its warm culture. Some attorneys and staff commute to the office from out of state. During the height of the pandemic, the entire firm worked remotely and has slowly been reintegrating to the physical office, but admittedly without a fully developed plan. Understanding that opinions vary widely, the firm conducted a survey of its staff to determine their preferences for office work. While the majority preferred at least a partial in-office experience, others preferred to work entirely remotely. Even those who wanted some in-office time, were not aligned on how much or when. Only one employee expressed a desire to return to complete in-office work. The firm has decided to implement a formal hybrid model, but in doing so has many questions to consider and pitfalls to avoid.
While the list of issues for X & Y to consider is long and growing, we examine here three critical employment law issues for any law firm embracing a new hybrid work arrangement.
Hidden Discrimination Issues Abound
Federal, state and local law all prohibit employers from discriminating against employees because they belong to specifically protected classes, such as race, religion, age or gender. The statutory framework for these prohibitions is vast, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, and the New York City Human Rights Law.[4] Under all of these laws, employers cannot discriminate when taking employment actions, such as hiring, firing, promoting, disciplining, and as discussed below, applying terms of employment such as remote work. Some employment laws also require that employers provide reasonable accommodations to employees for reasons protected by law such as an employee’s disability or sincerely held religious belief.[5] While all of these legal concepts pre-date the pandemic, their application to creating and applying a hybrid work model in a law firm can be complicated.
Partner X wants to implement the firm’s hybrid work policy by allowing all employees to choose when and where they want to work. Partner Y, on the other hand, wants to decide which employees will work from the office and when, because she sees increased efficiencies with particular teams in the office together. Both approaches may make business sense but could be treacherous in practice without careful consideration of applicable employment laws.
For example, as X & Y decides which employees will need to return and when, the firm should consider whether its decision-making may adversely impact employees in protected classes.[6] For example, should the firm choose a model where certain employees remain completely remote and those employees skew older, the firm could face a claim of age discrimination, particularly if the remote work turns out to be less beneficial even in ways that may not be immediately apparent.[7] Similarly, if a male employee’s work schedule is created so that he is regularly in the office with Partner Y whose deals in progress turn out to be larger than those of Partner X, a similarly situated female employee may feel she is being deprived of an opportunity to advance her career by working on the more significant projects.
To avoid these pitfalls, once X & Y decides which employees will work remotely and to what degree, the firm should look critically at whether either group, or any particular worker, will be treated more or less favorably in their terms of employment. As demonstrated above, problematic terms may not always be readily apparent. For example, will in-person staff meetings be held, even informally, which exclude the remote workers? How will new case assignments be handled? Will the firm take any steps to replace the informal mentoring that organically occurs when an associate or paralegal walks into a partner’s office to ask a question or just to say hello? Consider the broad range of potential employment decisions and opportunities which occur on a day-to-day basis in a law firm that are informed by whether the employee is working in-office or not – distribution of work and assignments, promotions, mentoring, other career advancement opportunities and more. Discrimination claims often grow from inconsistent treatment, even sometimes when that treatment is unintended.
Handling Requests for Remote Work
For any number of reasons, some employees may request to continue working remotely.[8] The firm should cautiously approach its decision making and responses, lest it draw a discrimination claim based on which employee’s request is approved or denied. X & Y also needs to be prepared that some of those requests may actually trigger a legal obligation to accommodate the employee’s needs.[9] For example, an employee with a disability may be concerned about returning to the office based on a pre-existing (or recently developed) health condition. If the employee requests continued remote work based on their health condition, that request would trigger the firm’s obligations to engage in an interactive process and determine whether the requested accommodation was reasonable and required under the circumstances.[10]
Only reasons covered by law trigger an obligation to provide a reasonable accommodation. For example, a generalized fear of returning to the office, or a concern about the risk of passing COVID-19 to a family member, are typically not grounds for legally required reasonable accommodations.[11] Similarly, a request to work remotely (or to modify a work schedule) to care for school age children, , typically does not trigger a legal obligation for accommodation.[12]
Nonetheless, it would be wise not to dismiss any accommodation request out of hand. For example, assume the firm decides to grant a request to work remotely to one employee who has school age children so that she can be home to help with their homework, but then denies the same (or sufficiently similar) request made by a male employee. The male staff member might conclude that his gender played a role in the firm’s decision.
Additionally, while a specific obligation to accommodate an employee for caregiver reasons may not exist under current law, some laws do prohibit discrimination on the basis of caregiver or familial status.[13] Consequently, a law firm that grants one employee’s request to work remotely for reasons other than child care may face a discrimination claim from an employee whose request for accommodation based on child care is denied. Last, a different analysis applies if the care is needed because of a child’s (or other family member’s) health condition. Here, the employee may be eligible to take family leave and use the benefits provided under the New York State Paid Family Leave program.[14]
Is X & Y Law Firm LLP a Multi-State Employer?
Consider that X & Y has been a New York State employer throughout the course of its existence. Before the pandemic some staff worked remotely on occasion outside of New York, not for any length of time or with any regularity. In the process of developing its hybrid plan, the partners start to think, as they should, about the firm’s expanded geographic footprint with employees working regularly in their home states. The firm’s plan has, in essence, transformed it into a multi-state employer which now must comply with the applicable laws of its employees’ home states – and even municipalities. In doing so, the firm will have to consider a potentially expansive new set of employment laws.
For example, if the firm’s chief financial officer will spend most of his time working remotely from Jersey City, New Jersey, then X & Y may need to comply with the New Jersey Law Against Discrimination,[15] the New Jersey Earned Sick Leave Act[16] and other state and local laws. The firm will also need to ensure that it is deducting proper payroll taxes based on the CFO’s new work location in Jersey City and that it maintains insurance required under state law, such as workers’ compensation.[17]
Multiply these complications if employees are also working remotely from additional states. This now multi-state employer could need to comply with the employment laws in as many states as its employees are working remotely. Consequently, as the firm is constructing its hybrid plan, it may want to take into account the variety of state and local laws that may apply based on these new work locations.
Wage and Hour Considerations in a Hybrid Work Environment
Working remotely raises potential issues as to compliance with state and federal wage and hour laws. For example, consider whether the firm will supply, or employees will be required to provide, office supplies for remote work. Wage payment issues can arise under federal and state law if non-exempt employees are compelled to incur certain types of out-of-pocket expenses.[18]
The firm will also want to avoid potential hidden liability for unpaid overtime when employees are working remotely. Federal and New York State law require that non-exempt employees (those eligible for overtime by law) earn overtime at one-and-one half times their hourly rate for all hours worked over 40 in a workweek.[19] With remote work, keeping track of hours worked can be a challenge. Employees who once arrived at the office at 9 a.m. and left at 5 p.m. and punched a time clock are no longer necessarily bound by those discrete parameters. With lines blurred between work and home, the workday may naturally start and end at more flexible times.
Law firms must pay for all work that they “suffer or permit” their employees to perform, even if that work was not requested, provided that the firm had actual or constructive knowledge about the work.[20] In a remote environment, it can be difficult for an employer to know what work is being performed and when it may be performed. To avoid potential wage and hour risks, law firms should have protocols in place to track and account for all hours employees are actually working, both in and out of the office. Firms should maintain policies that give clear direction to their non-exempt staff, for example, about the obligation to report, and procedure for reporting, all time worked; the firm’s commitment to paying overtime; and any requirements for advance approval of overtime worked.[21]
Conclusion
Given the breadth of issues and associated risks driven by a new and largely untested business model, should law firms get cold feet about embracing a hybrid workplace? Hardly. Like anything new, with planning and forethought any law firm considering a formal hybrid model can create a protocol that fits their culture and business needs while keeping within the bounds of employment law. Of course, employment law has proven to be about as volatile as the pandemic itself, so any plan should also build in room for flexibility.[22]
[1] For purposes of this article, a “hybrid office” is a model which supports both in-office and remote work in varying configurations.
[2] See Nicholas Bloom, Don’t Let Employees Pick Their WFH Days, Harvard Business Review (May 25, 2021), https://hbr.org/2021/05/dont-let-employees-pick-their-wfh-days?registration=success (79.2% of workers polled said they would like to remain working remotely for some portion of the week, with 31.7% preferring five days a week).
[3] X & Y Law Firm LLP is a hypothetical law firm and is not based on, or intended to depict, any particular lawyer, law firm or workplace.
[4] See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (1991) (applicable to employers with 15 or more employees); Americans with Disabilities Act, as amended, 42 U.S.C. § 12112 (2008) (applicable to employers with 15 or more employees); Age Discrimination in Employment Act, as amended, 29 U.S.C. § 623 (2015) (applicable to employers with 20 or more employees); New York State Human Rights Law, as amended, N.Y. Exec. Law § 296 (2021) (applicable to all New York State employers); see also New York City Human Rights Law, as amended, N.Y.C. Admin. Code § 8-107 (2020) (applicable to New York City employers with four or more employees).
[5] See, e.g., 42 U.S.C. § 2000e(j) (requiring reasonable accommodation based on religion); 42 U.S.C. § 12112(b)(5) (requiring reasonable accommodations for persons with disabilities); N.Y. Exec. Law §§ 296(3)(a), (10)(a); see also N.Y.C. Admin. Code §§ 8-107(3)(b), (7), (15).
[6] See supra note 4; see also, e.g. 42 U.S.C. §2000e-2(k).
[7] While the federal Age Discrimination in Employment Act protects individuals who are 40 years old or over, the New York State Human Rights law protects individuals over the age of 18. Compare 29 U.S.C. § 631(a), and N.Y. Exec. Law § 296(3–a)(a).
[8] See Mark Bergen, Google Approves Most Staff Requests To Relocate or Work Remotely, Bloomberg (Aug. 3, 2021), https://www.bloomberg.com/news/articles/2021-08-03/google-approves-most-staff-requests-to-relocate-or-work-remotely (Of more than 10,000 requests, 85% were approved); see also Jack Kelly, Apple pushed Back Its Return-To-Office Plans to January 2022 Over Fears of the Delta Variant, Forbes (Aug. 20, 2021), https://www.forbes.com/sites/jackkelly/2021/08/20/apple-pushed-back-its-return-to-office-plans-to-january-2022-over-fears-of-the-delta-variant/?sh=6dd0db6d62bd (Reporting employees stating they will quit if forced to return in-person).
[9] See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC at D. 15, D.16, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (last visited Sept. 21, 2021) (noting, for example, that while an employer is not required to automatically grant a request to work remotely as an accommodation, an employee’s ability or inability to complete their essential job functions remotely during the pandemic should inform the employer’s response to the employee’s future accommodation requests to work remotely after the pandemic).
[10] On September 7, 2021, the Equal Employment Opportunity Commission filed its first lawsuit alleging that an employer failed to provide a reasonable accommodation to an employee under the Americans with Disabilities Act when it denied an employee’ request to work from home and thereafter, fired her. Press Release, EEOC, EEOC Sues ISS Facility Services for Disability Discrimination (Sept. 7, 2021) (on file with EEOC Newsroom); EEOC v. ISS Facility Serv., Inc., No. 1:21-CV-3708-SCJ-RDC (N.D. Ga. Filed Sept. 7, 2021).
[11] See supra note 8, at D.13. Distinguished from an employee with a generalized fear around the pandemic, employees with mental health conditions exacerbated or prompted by the pandemic may be entitled to a reasonable accommodation. See supra note 8, at D. 2.
[12] See Guidance on Familial Status Discrimination for Employers in New York State, N.Y. Division of Human Rights (2016), https://dhr.ny.gov/sites/default/files/pdf/guidance-familial-status-employers.pdf (“ . . . the Human Rights Law explicitly states that no new right to reasonable accommodation was created by the addition of familial status protection.”); N.Y. Exec. Law § 296(1)(a), 296(3)(c); see also FAQs for Caregiver Protections, N.Y.C. Comm. on Human Rights, https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/Caregiver_FAQ.pdf; cf. Questions & Answers: Association Provision of the ADA, EEOC at 4 (Oct. 17, 2005), https://www.eeoc.gov/laws/guidance/questions-answers-association-provision-ada (last visited Sept. 27, 2021).
[13] 42 U.S.C. § 12112(b)(4) (“association” provision protects employees from discrimination based on their relationships or association with an individual with a disability); N.Y. Exec. Law § 296(1)(a); see also N.Y.C. Admin. Code § 8-102 (protects caregiver status).
[14] N.Y. Workers’ Comp. § 380-2.2 (2020); Paid Family Leave for Family Care, https://paidfamilyleave.ny.gov/paid-family-leave-family-care (last visited Sept. 27, 2021).
[15] N.J. Stat. Ann. § 10:5-5. Notably, the New Jersey Law Against Discrimination is applicable to all employers, regardless of size. Id.
[16] N.J. Stat. Ann. § 34:11D-1.
[17] Jersey City, N.J. ordinance ch. 18 § 133 (2018); N.J. Stat. Ann. § 34:15-1 (West).
[18] See 29 C.F.R. § 531.35 (2021) (If it is a requirement of the employer that the employee must provide tools of the trade, the cost of such tools purchased by the employee cannot cut into the minimum or overtime wages for any workweek); see also Minimum Wage Order for Miscellaneous Industries and Occupations, 12 N.Y.C.R.R. 142-2.10(b) (2017) (“The minimum wage shall not be reduced by expenses incurred by an employee in carrying out duties assigned by an employer.”).
[19] See Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et. seq. (2011); Id. § 207(a)(1); see also, e.g., 12 N.Y.C.R.R. 142-2.2. Non-exempt employees are those that are legally eligible for overtime because they do not fall into particular exempted categories. See 29 U.S.C. § 213; cf. 12 N.Y.C.R.R. 142-2.14.
[20] See 29 U.S.C. § 203(g); 29 C.F.R. § 785.11-12 (2011); see also Kuebel v. Black & Decker Inc., 643 F.3d 352, 365 (2d Cir. 2011).
[21] In August 2020, the U.S. Department of Labor published guidance for employers contending with newly remote workforces and their wage and hour/overtime requirements. Field Assistance Bulletin No. 2020-5 (Aug. 24, 2020), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2020_5.pdf.
[22] This article is intended to highlight some of the issues relevant to a hybrid workplace and is not intended, nor should it be used, as a substitute for legal advice or opinion, which can be rendered only when related to specific fact situations.
