Patricia M. Prezioso
Chair, Employment and Labor Practice Group
Sills Cummis & Gross P.C.
Give us one aspect of work-from-home that few businesses have thought of — or are ready to handle?
While picking just one is difficult, I would have to say data security. The remote environment may make some employees bolder with transmitting an employer’s data to personal devices and email accounts. Businesses work for years to build a customer base, identify reliable vendors, key contacts and competitive pricing. We have seen an uptick in employees leaving their employer and taking their former employer’s information to a competitor, as well as incoming employees bringing, or being accused of bringing, such information into a new position, which also puts the new employer at risk. Policies aren’t enough — enforcement is key.
What steps can an employer take if it feels its clients are working for others from home — while still on the clock?
While professional guidance is essential for using tools like monitoring, employers can take steps to implement policies and training broadly, and consistently informing employees that there is no expectation of privacy regarding their business email accounts and business devices. Doing so will permit an employer’s legal adviser to analyze whether monitoring can legally be employed. Additionally, detailed work objectives and employee handbooks should be updated or implemented, emphasizing remote work expectations. While disloyal employees may not be foreclosed, guardrails to reveal inadequate performance, and having clear rules in place, will reduce risk should swift action be necessary.
Every employee wants ‘flexible’ hours — what is the best way to define that term/those rules that works for both the employee and the employer?
Employers are competing for talent and retention, and a happy, thriving employee will be a more productive business asset. On the flip side, work needs to get done and employers need an accountable workforce. While there is no cookie-cutter approach to flexibility, defining employers’ needs, and where flexibility can be achieved and where it cannot, is the start of the analysis. Not all roles are conducive to flexibility, but where there is room for flexibility, the rewards to employers are often tremendous. Criteria must be objective, documented and fairly implemented to avoid claim risk.
What is the biggest issue facing HR/labor relations/employment moving forward — and how are you advising your clients on it?
Worthy of critical attention is the fact that employers are facing less certainty going forward in their ability to enforce restrictive covenants. Between increasing state legislation to narrow or invalidate noncompete agreements, and government agency activity attempting to do the same, the message seems to be that employers should be protecting their proprietary and confidential information rather than counting on restrictive covenants to quell unfair competition. Damages caused by employees taking confidential information for use with a competitor can be devastating to a business. We are encouraging our clients to update their protocols, employment agreements, policies and internal enforcement.
Give us one more thought on a topic of your choice.
Remote work has opened competition for jobs outside of prior geographic limitations, while seemingly employees’ priorities, including flexibility, immediate compensation increases and professional growth, have led to increased mobility and fewer employees remaining with one company for lengthy tenures. Many businesses are facing challenges in identifying experienced workers and effectively stabilizing their workforces, and we seem to be seeing more union involvement. Being patient with hiring, creatively and consistently encouraging, managing and training your employees, while being open to feedback is critically important to retention.
