Where do we go from here?
March 2020 was the month my husband and I went to Ireland to celebrate my 40th birthday. It was a trip that was months in the making and, when we left the United States, COVID-19 was largely relegated to China. There was no reason to think things would change.
Four days later, an ocean away from our children, we began to receive well-meaning updates from our friends and family: the U.S. borders would soon be closed to all non-U.S. residents due to rising COVID-19 cases worldwide.
My husband and I tried our best to enjoy ourselves, but three days later the Irish government shut the country down. The streets were empty; all bars and restaurants were ordered to close. We had to get out — and fast! I was in communication with my firm and participating in COVID-19 taskforce calls from Ireland. My husband and I made it back to the States, and the following week, my firm sent us all home to work remotely — where we all remain today.
While your COVID-19 story may not be as Orwellian as mine, there is no doubt that the pandemic has knocked you, and your firm, for a loop. Although the “new normal” has proven to have some positives among the drawbacks, one thing is clear: Things will never be the same.
Pre-COVID-19, it was an absurd notion for many that nonexempt employees would ever have access to technology to enable them to work from home. “How can they be trusted/monitored/productive?” But suddenly we were forced to push forward and implement such technology options. Many of us were not prepared for the speed at which we were required to outfit the population of our firm to work from home successfully.
I decided to take on a research project* to find out just what effect COVID-19 was having on our firms. After polling 363 ALA members, I found that 9.05% of the respondents spent $15,000 or more in getting their firm personnel ready to work from home, with 2.34% of the respondents spending more than $65,000.
Most firms, over 60% of respondents, did not have a work-from-home policy prepandemic. Of those that did (39%), less than 20% included allowances for nonexempt employees. Eight months later, though, we have proven it can be done. We have seen that all levels of employees can work remotely successfully if their functions allow them to. So does this mean remote working is here to stay?
“It all depends on the industry, because you can see people are working remotely and will likely continue to do so,” says Ashlee Grant, a board-certified Labor and Employment Partner with BakerHostetler. “Folks are looking to adopt a policy that can be broader and more long-term. We all need to look at being more flexible.”
Does this mean eligible job descriptions should be updated to include verbiage about work-from-home flexibility? “Absolutely!” she says. “Employers are going to see an influx of requests to work from home, even after COVID. The hard work has already been done — take the data, analyze it and adjust as needed.”
Of course, there are other options. The Society for Human Resource Management (SHRM) created short-term telecommuting agreements and temporary telecommuting policies that can be used during the pandemic, should your firm opt to continue work-from-home allowances for the near future.
Based on my survey, I believe a hybrid option is the best choice and will be the choice of many firms in the future. Of the respondents, 30% indicated they would be open to allowing attorneys to work from home at least a few days a week post-COVID-19; 26% said they were open to the same for exempt staff; and 16.21% indicated they were open to the same for nonexempt staff. An overwhelming number, 87.91%, indicated they were not considering a 100% virtual environment.
There are ways to ensure productivity and security with a remote workforce, too. “With technology, [the Fair Labor Standards Act] is adapting. There have been cases of email issues, time off the clock, etc.,” says Grant. “Employers are going to have to rely on technology to track these issues — if they’re using our network and our equipment, I see no issues with tracking/monitoring. Of course, how expensive is it? That is the first things folks will ask, but I do think it is necessary if we continue to work from home long-term.”
Monitoring tools that track productivity and mediate potential security threats do exist. However, these tools are not without risks. According to a recent SHRM article, monitoring is subject to a variety of federal and state laws. Additionally, you should communicate to employees that they will be monitored.
But the biggest concern may be a loss of trust: 73% of employees felt introducing technologies to monitor their work product would damage trust between the employee and their employers, according to a survey cited by SHRM.
Data protection is another concern associated with remote work. Ensuring secure remote access is essential to meeting data privacy regulations. Each firm needs to review and revise their technology policies to ensure they are compliant with the Health Insurance Portability and Accountability Act (HIPAA), the General Data Protection Regulation (GDPR), local laws, as well as ethical and professional responsibility requirements. Once finalized, the firm must ensure that each employee with remote access has reviewed and understands the policy and will operate within those parameters.
Continued remote working has the potential to be a win-win for the firm and its employees. Travel costs have decreased, and this period has certainly proven that some meetings really could have been an email. The firm’s most considerable money-saver, though, is real estate. With the success of work-from-home, some may consider reducing their office size.
However, given concerns over social distancing and high-touch surface areas, the changes needed may not be as obvious as one would think.
“Some markets talked about putting attorneys in a shared space, and that can work in theory — reduce footprint — but that doesn’t allow for recommended social distancing,” says Kenneth Wiesehuegel, a Practice Area Leader for design firm Gensler’s South Central Region.
A recent Gensler survey showed that only 10% of U.S. employees want to work from home full-time, but those who want to return to work expect crucial changes to the workplace. So will space design change completely?
“We have seen a lot of trends focused on health and wellness. This is pushing it further — good air quality and outdoor space,” says Wiesehuegel. “The desire for more outdoor space is accelerating, and new buildings are providing that. With existing buildings, we think we will continue to see biophilic design elements like a moss wall, green wall, indoor planters. A space that creates a sense of the outdoors and a sense of well-being with the added benefit of oxygenating the air.”
Additionally, it’s important that all people, both in-office and remote workers, have the opportunity to meet and that the space provided lends itself to doing that safely.
My previous firms traditionally had two office sizes: partner and associate. In recent years, the new firm buildouts making headlines featured single-sized offices and lots of open and collaborative spaces. In my experience, most attorneys were using their offices half the time due to travel.
“If you need to be in the office, you ‘book’ an office, like a conference room. Hoteling offices are appropriate if there are proper cleaning protocols overnight,” Wiesehuegel says. Freshfields announced in August they are implementing an “office release system,” which means someone else can use your office if you are working remotely. This will allow the firm’s new space to be 20% smaller than their existing space.
While these small changes will have long-lasting impacts on the market and the way firms operate in the future, I do not believe firms are moving to 100% virtual options any time soon. Husch Blackwell launched a 100% virtual office in the midst of the pandemic; however, the data from my survey suggests most firms will not follow suit.
“We expect to see work-from-home and flexible work arrangements being implemented on a broader scale and becoming a permanent part of company policies,” says Anya Marmuscak, Vice President and Commercial Real Estate Adviser at JLL. “This doesn’t necessarily equate to less office space and office demand, but the purpose and the use of the office will evolve. Surveys are showing that people want to work from home one to two days per week, not every day, due to distractions, home environment and need for face-to-face interactions, etc.” This is on par with what the data from my survey suggests.
“Initially most projects and lease decisions were put on hold, and unless a lease was expiring in the near term, I was advising them to wait,” says Marmuscak. “Many tenants are delaying decisions in the short-term and looking at opportunities to restructure leases. We are taking a much harder look at employee utilization of space; companies that aren’t studying this need to.”
So what does that mean for the downtown, Class A office space we associate with law firms? “The future of the office will be designed around the talent the organizations are trying to attract,” says Marmuscak. Now that they know they can work from home effectively, a certain number of quality candidates will be uninterested in living in or commuting to the urban core.
That may result in some organizations downsizing their headquarters in favor of “satellite” offices in outlying neighborhoods or suburbs, Marmuscak says. Employers could use the lack of a commute (and its accompanying expenses) to offer employees a lower salary — emphasizing their flexibility.
Some may even opt for coworking spaces: “There are no upfront capital costs, and they offer shorter terms with total flexibility. You can scale those offices based on where talent lives and based on business and individual employee needs.”
Working from home is not without its issues. Take for instance my 6-year-old, who believes she’s a star every time she crashes a Zoom meeting. People inevitably multitask; the lines of work and family get blurred, and feeling torn between them causes guilt. Setting clear guidelines and expectations of availability — while realizing that flexibility is key — is a must in a work-from-home environment. With most schools now in session and many parents playing teacher and employee, giving them grace and understanding goes a long way, too.
Then there are equipment issues. Until recently, I was struggling to do everything on my small laptop and an old computer chair. I realized in order to be as productive as I could be in the office, I needed my home office to have the same functionality of my work office. But how should firms handle expense reimbursement and possible accommodations for home offices?
“Some of this will depend on how much they are working from home,” says Grant. “If [the employee works] entirely from home, I could see that being an accommodation. Of course, it could at some point become an undue burden, so there needs to be a balance. So we need to look at what is being asked in the expense. Is it an actual accommodation being requested? Is the employee asking or is the employer requiring work-from-home?”
There is also the loss of face-to-face interaction. A recent JLL survey found that 44% of people working from home miss human interaction, and it’s not being replaced by virtual meetings. People want to be in the office and engaged.
“More face-to-face interaction promotes higher levels of innovation and helps the bottom line, improving the profitability and innovation index,” Wiesehuegel says. Gensler’s survey backs this up: respondents’ top reasons for wanting to return to the office were meeting with colleagues, socializing with colleagues and face-to-face interactions.
Working remotely sometimes feels like working alone. Some of the best assignments and most innovative ideas come from those hallway and café encounters. This has a negative impact on all employees — but it has the potential to be far more damaging to employees of color. With those chance encounters all but eliminated, people of color could be left behind due to opportunity inequity or distance bias.
According to a New York Times article, distance bias describes a dynamic that can occur in a remote work environment. Because people put more emphasis on those closer to them and don’t try to make connections where there isn’t proximity, they only maintain relationships with the people they already know. When a leader is looking for someone to work on a project, most go to the comfort zone of people who remind them of themselves. Managers must be aware of and trained on these issues so that they can ensure work is distributed equally.
I believe there are a few keys to meaningful engagement and high morale during this period:
My office sends out a weekly digital word search and hosts a weekly staff meeting, coffee chats and lunches. I created a COVID Chronicles newsletter that includes funny memes; a section for aww-ing over at-home “coworkers” (usually a dog or a child); and employee recommendations for books, TV shows, movies and new hobbies. We encourage body movements by occasionally asking people to increase their step count or do a form of seated or standing exercise. Lastly, a few weeks ago I began “showing my humanity” in Friday emails. I usually discuss things I am struggling with and end with a message of hope in the form of a TED Talk or article. I ask that our folks view or read the material to discuss at our next staff meeting.
The biggest job of any firm leader is to protect the firm culture and engage the people it employs. Do we move people to work or move work to people? I think the answer is clear, open the option of both and let the work, productivity and retention speak for itself.
*The online survey was open to over 6,900 ALA members in 33 countries between July 13 and July 24, 2020. Each respondent worked within a law office or legal department environment. The 363 anonymous responses represent a wide range of positions, seniority levels, roles, ages and geographical areas.
Monique Mahler recently sat down for an episode of Legal Management Talk to discuss her research findings, as well as her experience as the winner of the Foundation of ALA’s Student Legal Career Scholarship. Listen to the episode here.
