One of the biggest issues employers are facing, as pandemic restrictions loosen, is the difficulty of attracting and retaining employees. Local employment law experts are helping many navigate the legal implications.
“This is putting pressure on increasing wages and benefits, which costs necessarily get passed onto consumers and helps fuel inflation,” said Baird Holm Partner Randy Stevenson.
COVID-19 continues to be hot button issue although not as much as it was a couple of months ago.
“Most employers are now thankfully past the issue of mandatory vaccinations,” Stevenson said. “Remote work continues to be hot, even though the pandemic is waning. Many employees who worked remotely do not want to return to the workplace, at least not on a full-time basis.”
Employers are re-evaluating their policies and procedures and updating their employee handbooks in light of workplace and legal changes, according to Stephanie Sharp, an attorney with Vandenack Weaver Truhlsen.
“Employees, many of whom have changed jobs in the last two years, are negotiating new employment agreements and seeking assistance with past employment agreement compliance,” she said. “For example, employees are seeking information on compliance with non-solicitation provisions and asking about the enforceability of non-compete provisions.”
Evyn Perry, an employment attorney with Abrahams Kaslow & Cassman, said firms are struggling with the desire to bring employees back in-person while many employees want to continue working remotely.
“At the beginning of the pandemic you saw many employers saying that their production hadn’t dropped off and [working remotely] might be the setup of the future, and employees were happy with it,” Perry said. “But now some employers are starting to see some production numbers drop, and they’re starting to think it might be better if people came back into the office for the comradery, collaboration, and other benefits of working together.
“Employees want to stay remote for a multitude of reasons such as no commute, more flexibility with child care and even things as minor as saving money on dry cleaning.”
While COVID-19 cases are still low and OSHA’s Emergency Temporary Standard (ETS) was vacated by the courts, there are still a number of COVID-related issues that continue to affect the workplace, according to Fraser Stryker Partner Patrick J. Barrett.
Employers must be aware of the potential employee claims under the Americans with Disabilities Act (ADA), Title VII or state laws. Employees with “Long COVID” will present issues that must be addressed, like reasonable accommodation and/or leave in accordance with the Family and Medical Leave Act (FLMA). Similarly, religious accommodations for exemptions will remain an issue for employers with vaccine mandates.
Bringing Employees Back
“Employers who have not already done so, must carefully plan how they design their return to work as it is proving to be an important retention issue for employees,” Barrett said.
“During the pandemic, employees enjoyed the benefits that remote work brought, including increased flexibility.”
In planning for return to work, employers are considering different options to lessen the burden on employees, including implementing such things as hybrid work schedules, flexible work weeks, and policies that allow for increased flexibility when personal matters arise.
“The vaccine mandate and masking as well as the recent political election have generated strong opinions among employees,” Barrett said. “Increasingly, the workplace is reflecting the divisions, which exist in our society. It is necessary for employers to promote civility among employees to protect employee morale, foster greater workplace respect, and try to prevent litigation.”
For example, as workplaces start to relax some pandemic-related practices, employees should be encouraged to respect one another’s choices such as wearing face coverings or insisting on social distancing. Employees should be encouraged to be respectful of others when issues arise about which they disagree, whether it is the vaccine mandates or other political issues.
“Employers should also consider enacting policies that promote respect and civility among employees and using discipline, when appropriate, to enforce these policies in order to discourage unkind or uncivil behaviors, especially among those employees who are taking precautions against COVID,” Barrett said. “Employees should bear in mind that even though the ETS was withdrawn, OSHA will probably issue another ‘vaccine or test’ mandate or permanent rule which will be narrower.
“Employers in certain industries should be aware that they may be more likely to fall within the purview of the permanent rule.”
Getting Creative
Law firms, especially those with employment services, are having to be more creative about how they approach litigation and how they design employee handbooks and contracts, Perry said.
“When issues come up you now have to throw in the COVID factor,” he said. “That affects everything. The main impact on employees, in general, is whether the work will be remote, at home, or some kind of hybrid.
“For about a year and a half every meeting was an email or done through Zoom. I think that’s being carried forward from a practicality and cost standpoint — maybe we don’t have to fly to a different city to get together when we can do it all on Zoom and save everyone’s time and money. That’s something employers are being presented with whether it’s a law firm or any other kind of business.”
Because AKC is based in Omaha and has only one office, changes have not been as big as some multi-office firms.
“For other law firms toward the beginning of the pandemic, the trend looked as if it might be remote work forever,” Perry said. “Now I think the workforce is trending back to where we want some sort of normality, a 40 hour per week schedule with people coming into the office.”
Despite the pandemic, there are still many individuals who are starting new businesses and new ventures, Sharp said.
“When the pandemic first hit, many transactions and business ventures were initially put on the backburner,” she said. “Those business ventures are now back on the table. Vandencak Weaver LLC recently merged with Truhlsen Elder Care to create Vandenack Weaver Truhlsen LLC. So, our law firm is also capitalizing on growth opportunities.”
“Many employers are business-as-usual, while others are managing health and safety with vaccination and masking in addition to sometimes onerous negative-testing requirements that must be frequently updated before an employee is allowed to enter the workplace,” said Goosmann Law Attorney Matthew G. Dunning.
“On top of all that, employers must manage the productivity of their workers and ensure that confidential and other information is protected if employees are working remotely.”
COVID Burnout
Many employees feel burned out by COVID. Back in the fall of 2020 and even 2021 when it looked as though we were emerging from the worst of the pandemic, there were spikes in cases.
“The day before they were to come back in person, companies would delay it,” Perry said. “There was an emotional toll on people. Also, for employers [who were] spending money, developing plans, and [enacting] mitigating and safety efforts only to have local, state, or federal laws or guidelines change it, there’s been an emotional toll with the back and forth.
I think it will have some long-term effects on both employers and employees.”
The employment situation varies from market to market, said Perry, who doesn’t believe there’s a shortage of jobs or lawyers in the Omaha market.
“In some of the bigger markets you’re seeing it saturated on one side or the other where there’s a bunch of applicants and not enough jobs or vice versa,” he said. “In some of the coastal cities there are a lot of jobs being offered for lawyers, but there’s not a ton of applicants.
“Employees are subject to increased monitoring in their productivity and communications, which will likely lead to more employees voting with their feet, and changing jobs to situations that reflect their needs to balance their personal and professional lives,” Dunning said. “[That] will impact employers’ ability to recruit and retain workers. Employers who are able and willing to be flexible will likely be better positioned to maintain a workforce that can be productive.”
Attracting and Retaining Employees
From April to September 2021, more than 24 million American employees quit their jobs. Increasingly, it is becoming more difficult to recruit employees, Barrett said. This trend impacts the legal industry as well as individual law firms.
With the “Great Resignation,” employers are increasingly, turning to any measures possible to try to retain employees and to avoid creating or fostering the type of workplace that encourages employees to resign or not work for an employer in the first place.
“Recent studies show that corporate culture is more important than compensation in predicting which companies lost employees at a higher rate than their industries as a whole,” Barrett said. “A toxic corporate culture is the single best predictor of which companies suffered from high attrition during the Great Resignation.
“The [remote working trend] allows lawyers and other staff members to work from anywhere,” Stevenson said. “That means that, as a law firm, we are not limited to the metro area for recruiting certain positions.”
After several years of the focus on COVID-19 and vaccine related laws and requirements, employers must remember and continue to address the host of “traditional” labor and employment laws that apply to them, according to Eric W. Tiritilli, a partner at Lamson Dugan & Murray.
“For instance, the [Equal Employment Opportunity Commission] has issued guidance regarding caregiver discrimination,” he said. “Also, the Department of Labor announced its intent to focus on compliance in the warehouse and logistics industries regarding the laws it enforces including wage and hour compliance, prevention of retaliation and harassment for workers exercising rights under the law and the FMLA.
“Employers have been pulled in many directions over the past several years trying to stay on top of the new and changing requirements related to COVID-19. As we progress to a new stage, it will be important for employers to continue to be mindful of their obligations in the other areas of employment law — including discrimination and wage and hour issues to make sure they are mindful of, and complying with, their obligations under the various laws that impact the workplace.”
The failure to appreciate high performers, through formal and informal recognition, is another element of culture that predicts attrition. The failure to recognize performance is likely to drive out a company’s most productive employees.
“Employers will be prudent to take those measures which counteract those corporate cultures from which employees are fleeing,” Barrett said. “Generally, there are four measures that offset this desire to resign: offering lateral career opportunities, remote work, social events, and more predictable schedules. Employers, including law firms, must root out issues that contribute to a toxic work culture to eliminate the loss of good and productive employees and the failure to attract qualified candidates.”
“Abrahams makes an intentional effort to develop and maintain a culture that works for everyone whether it’s an equity partner, brand new associates, or support staff,” Perry said.
“Young associates are always assigned mentors who are partners in the firm, who help insure their success.”
VWT seeks to understand its employee’s strengths and to put individuals in a position to succeed.
“VWT has grown through the pandemic and brought on a number of young, bright attorneys recently,” Sharp said. “In terms of non-attorney positions, we have consistently maintained a steady flow of qualified applicants based on reputation.”
The firm assesses employees to better understand how they learn and what motivates them. The company also invests in its employees and supports them in the goals they have both inside and outside the workplace.
“Employers are paying higher wages and offering greater benefits,” Stevenson said. “They are also open to allowing more remote work opportunities. Some employers have relaxed their workplace rules so as to not lose employees.
“For example, several of our clients now do not prohibit the off-duty use of marijuana. As long as the employee is not intoxicated at work, they are not concerned. In other words, these employers are beginning to view marijuana the same as alcohol.”
