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3 Key Components Every Office Should Face To Avoid Compliance Pitfalls In Hybrid Work – Even Startups!

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by Felice B. Ekelman, JD and Julie P. Kantor, PhD,  authors of “THRIVE WITH A HYBRID WORKPLACE: Step-by-Step Guidance from the Experts

Leaders in the startup space should be thinking about hybrid work — which focuses on where work is performed. Hybrid work offers an opportunity to develop close, collaborative relationships with work colleagues. The opportunity for in-person interaction can help the bottom line by supporting employee retention and productivity. Knowledge workers who are the backbone of today’s start up work force want both a work community and the flexibility to determine where and how they work. Hybrid work is increasingly viewed as the answer.

As your organization develops its hybrid policy there are key components which are necessary for success and to avoid compliance pitfalls.

What is the current trend in hybrid work?

Recent reports confirm an upward trend in hybrid work, and a decrease in remote work. Hybrid work arrangements typically require that employees report to an office for work some portion of the workweek. Typically, hybrid schedules require employees to be working in an office several days a week or several days each month. Hybrid can also refer to arrangements where some employees work in an office all or some of the time, and others work remotely all of the time. In contrast, remote work refers to an arrangement where either the organization does not maintain an offices or some or all employees are not expected to regularly report for work in an office. Instead, work is done from anywhere, and the organization can recruit its team from anywhere within the country or even internationally.

For startups deciding whether to develop a hybrid or remote work force is a key strategic decision. With a hybrid workforce there’s the need for an office or two or perhaps even three. While leasing office space creates a financial obligation, the costs associated with an office may be a worthwhile investment. Physical presence can help develop workplace relationships. Collaboration can be facilitated through in-person conversation. Building a loyal team can be easier when staff really get to know one another.

Developing a policy that works.

Getting hybrid right is not so easy. Once a decision has been made to focus on developing a hybrid workforce, getting the parameters of the hybrid policy right is important. The key to a successful policy is to focus on what work should be done in the office. This is the place to start. If leaders jump to the question how many days in the office without first determining what work should be performed in the office the approach will not be effective. The public battle we’ve all read about between business leaders, whose goal is to s increase time in office and employees who want to keep the flexibility to chose when and if they report to an office, can be avoided.

Here’s how: first focus on these questions:

  • What work will be done in person in an office?
  • Why should this work be done in an office?
  • Who needs to participate in the in-person collaborative work effort?
  • How often should employees be together in person to perform this work?

The number of days, and the choice of days in the office should be considered only after these holistic questions are considered and answered.

Who should participate in developing the company’s approach to hybrid work? Once the decision to develop a hybrid workforce is made, voices from a range of your company’s leadership should be heard. Your organization will need buy-in from leaders that hybrid is the best approach for building a congenial, cohesive and profitable organization. Involving a broad range of your organization’s leadership is not only a good way to develop support for the decision, but input from various points of view — parents, caregivers, commuters, GenZ to baby boomer — will go along way to ensuring that the decisions reflect the needs of a diverse group of employees.

What about employee surveys? Input from the whole team is important but most useful after the key parameters of the program are in place. For example, surveys are a good way to identify “anchor days” the days where teams will be in the office together. But surveys are not the method to determine whether hybrid work is the right approach for your organization. That’s a question that leaders should decide.

Understanding emergent legal issues relating to hybrid work polices.

Startup culture and a flexible approach to work typically go hand in hand. But there are legal issues that require attention when developing a hybrid policy.  Your organization’s hybrid work policy should include a provision allowing employees to seek an “accommodation” should their ability to work on a hybrid schedule be limited by a physical or mental disability or because of a sincerely held religious belief. A word of caution — should an employee seek an accommodation for such reasons a consult with legal counsel or a human resources professional is necessary to ensure that decision-making regarding the accommodation request is appropriate.

Likewise, inconsistent application of the hybrid work policy can create unintended liabilities. Should your organization make exceptions for some employees (as opposed to legally required accommodations), inconsistent enforcement of the hybrid policy can foster disparate treatment claims. Disparate treatment claims can arise when exceptions to policies are permitted for some employees but not all, leaving open the possibility that the exceptions favor (or disfavor) employees based on a classification protected by the anti-discrimination statutes (think: age, gender, race, national origin or religion). Worse yet, where leaders allow for “side deals” exempting some employees form the hybrid work policy’s requirements the policy becomes impossible to administer.

As remote and hybrid work arrangements have expanded, business must remain diligent about paying employees properly. The Fair Labor Standards Act (FLSA)is the federal law which covers virtually every private employer in the US. The FLSA requires that employees be paid hourly, and be paid overtime for hours worked over 40 in a workweek unless the employee is “exempt” from overtime pay. While many of the white-collar knowledge workers who typically work on a remote or hybrid work schedule are exempt from the overtime requirements, many do not meet the requirements, and employers must be diligent about keeping track of their hours and pay each week. When white collar workers reported to an office, tracking hours was easier; employees punched a time card (old way), scanned in to an office, or recorded hours worked on their computer when they logged in at the start of the work day. When employees work remotely, these rules still apply. Employers are responsible for ensuring that hours worked are recorded accurately, and that required breaks are also recorded. As startups grow and expand their workforce, properly evaluating the work performed by employees to assess whether employees must be paid on an hourly basis with overtime is highly recommended. Mistakes in how employees are paid can be costly to organizations because laws provide for significant damages to be awarded to employees who successfully litigate these claims.

The bottom line: hybrid work is here to stay. It is time for your organization to consider the advantages of hybrid work arrangements. With thoughtful planning your organization can Thrive With a Hybrid Workplace!

 

Felice B. Ekelman, JD is a principal of Jackson Lewis PC, where she practices employment law.  Julie P. Kantor, PhD is a business psychologist, executive coach, advisor, and founder of JP Kantor Consulting. They are the authors of “THRIVE WITH A HYBRID WORKPLACE: Step-by-Step Guidance from the Experts” (Rowman & (Rowman & Littlefield, 2023).