Category: Labor & Employment

This is Big: Visa Pathway Opens for Foreign Workers Seeking H-1B; H-2B; L-1 and J-1 Visa Stamps

An important court ruling by Judge Jeffrey S. White of the U.S. District Court for the Northern District of California has opened a visa pathway for temporary workers and their employers.

On June 22, 2020 President Trump issued a Presidential Proclamation 10052 (“Visa Ban”) which suspended the issuance of four types of visas:  H-1B; H-2B; L-1 and J-1, and also prohibited the admission into the U.S. until at least December 31, 2020 of persons subject to this Visa Ban.  Our past alerts on this Visa Ban may be accessed here.

The President claimed that he issued this Visa Ban purely for domestic economic reasons: to protect the U.S. labor force in the wake of the pandemic. But there is a strong argument that the President overstepped his authority in issuing this Visa Ban, since the underlying rationale of this Proclamation related to domestic policy-making (as opposed to keeping immigrants out of the U.S. for national security reasons).  Further, by a stroke of his pen, the President wiped out the availability of four categories of work visas specifically enacted into law by Congress.

Because the Proclamation allows for such limited exceptions to its broad reach, this Visa Ban has adversely impacted thousands of employers and temporary workers across the United States.  People who are subject to it simply cannot get L-1 or H-1B visa stamps at US Consulates abroad while the ban is in place (unless they fit into an exception/exemption based on the nature of their work).

As noted above, yesterday, the U.S. District Court for the Northern District of California upheld a legal challenge to this Visa Ban filed by plaintiffs including Intrax, Inc., the U.S. Chamber of Commerce (AmCham); the National Association of Manufacturers (NAM), the National Retail Federation, and TechNet.  The above-referenced association plaintiffs had filed the lawsuit on behalf of their association members claiming that the Proclamation exceeded the President’s authority and that it violated the Administrative Procedures Act (APA).   Now that the federal court in California has enjoined this Ban, members of the plaintiff associations can benefit from the injunction.  This means if an employer can show it is a member of one of these associations, or becomes a member of one of them, it can argue that the injunction applies both (a) when its employees apply for a visa abroad in one of these categories, and (b) when seeking to enter the U.S. in one of these otherwise banned visa categories.  

Joining a Plaintiff association is a straightforward matter.  For example, a company can join the American Chamber of Commerce by paying a fee of $250. U.S. Consulates should honor proof of membership in a plaintiff association in considering visa applications for one of these impacted visa categories.

It is rare to be able to take advantage of a legal ruling in this way, and all U.S. employers who depend upon their valued H-1B, H-2B, L-1 and J-1 workers, should immediately try to leverage this opportunity presented by this injunction.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

ARTICLE BY Susan J. Cohen of Mintz
For more articles on visas, visit the National Law Review Immigration section.

Election Season and the Workplace, Part 1: Employee “Free Speech” and Political Activities

With Election Day just around the corner, we’ll be highlighting some of the issues facing employers in a two-part series on elections and the workplace. In this first installment, we’ll look at employee protections around political speech and activity both in and outside the workplace. In Part 2, we’ll address statutory leave entitlements for employees to vote or engage in other political activities.

Political Speech in the Workplace

Political speech and activity in the workplace is a recurring source of employer concern, for a number of reasons. First, when these discussions or activities occur during working hours, they can impact performance, productivity, or even cross the line into unlawful bullying or harassment.

In addition, if the employer is a tax-exempt organization, certain political speech can also implicate the organization’s tax-exempt status. Many tax exempt-organizations are subject to significant restrictions on lobbying and political activities in exchange for the public subsidy that they receive. For example, a 501(c)(3) organizations may lose their tax-exempt status if they engage in political campaign activities or if a substantial part of its activities involve lobbying. Speech by an employee that constitutes political campaign or lobbying activity may be attributed to the organization if it can be inferred that an employee’s speech is made as a representative of the organization or that the speech has been ratified by the organization. This could happen, for example, if an employee, using their own social media account that the employee also uses to engage in speech on behalf of the organization, engages in lobbying activity by urging followers to contact their state representative to advocate for the adoption or rejection of proposed legislation.

Finally, when employees attend political rallies or support causes – for example, on social media – they may (intentionally or not) criticize or create a conflict of interest with their employer. How far employers can go to restrict employee speech and activity is a complicated question, governed by several sources of law.

Employee “Free Speech.”

Despite popular misconception, there is no general right to “free speech” in a private sector workplace.  As an initial matter, because the U.S. Constitution is primarily concerned with issues that involve state actors rather than private actors, the First Amendment does not prevent private employers from prohibiting political speech in the workplace.  Speech by public sector employees may be protected by the First Amendment, but only to the extent it involves a matter of public concern.  Therefore, subject to the limited exceptions discussed below, private sector employers are generally free to prohibit and discipline employees for discussing politics at work.

Free speech protections can extend to private sector employees by statute.  For example, Connecticut General Statute § 31-51q prohibits employers from taking any adverse action against employees for exercising their First Amendment rights, provided that such activity does not interfere with the employee’s job performance or the employment relationship.  As in the context of public sector free speech protections, courts have interpreted this statute to only protect statements made outside of the scope of employment, and not speech pursuant to official duties (e.g., reports of labor law or payroll violations).

In addition, Section 7 of the National Labor Relations Act (“NLRA”), which applies to both union and non-union employees, protects certain “concerted activities” of employees for the purposes of “mutual aid or protection.”  Political speech or activity that is unrelated to employment – for example, an employee distributing campaign literature encouraging co-workers to vote for their candidate or political party of choice – would not be covered or protected by the NLRA. The NLRA therefore does not prevent employers from prohibiting these purely political discussions or activities in the workplace.

However, political speech may be protected by the NLRA when it relates to the terms or conditions of employment.  For example, conversations regarding wages, hours, workplace safety, company culture, leaves, and working conditions may be deemed protected concerted activity and therefore be protected.  An employee who encourages co-workers to vote for a candidate because the candidate supports an increase in the minimum wage might claim protection under the NLRA.

The same rule generally applies to employee advocacy.  When employees are engaging in advocacy unrelated to employment, the National Labor Relations Board has taken the position that employees are simply acting “in the interest of the community at large and in furtherance of [their] own political agenda.”  For example, a construction worker engaging in advocacy involving police reform at a protest or before a legislative body would likely not be protected because the topic of the advocacy is unrelated to the employee’s job as a construction worker.  However, if the same construction worker was advocating before a legislative body in support of safety regulations that would impact the jobsite, the employee’s advocacy would likely qualify as protected concerted activity.

Therefore, despite that employers have broad authority to prohibit political discussions at work, employers should ensure that their policies and practices do not infringe upon rights granted to employees under state law or the federal NLRA.

Lawful Outside Activity/Off-Duty Conduct Statutes.

Many states have laws that prohibit adverse action against employees based on lawful activities outside the workplace, including political activities. For example:

  • In approximately a dozen states, employers are prohibited from preventing employees from participating in politics or becoming candidates for public office. New York Labor Law § 201-d prohibits employers from discharging or otherwise discriminating against employees because of their “political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal.”  Political activities are defined to include: (1) running for public office, (2) campaigning for a candidate for public office, or (3) participating in fund-raising activities for the benefit of a candidate, political party, or political advocacy group.  Similar laws exist in California, Louisiana, and Minnesota, among other states.
  • Other states – including Delaware, Florida, Massachusetts, and New Jersey– prohibit employers from attempting to influence an employee’s vote in an election. For example, in Florida, “[i]t is unlawful for any person … to discharge or threaten to discharge any employee … for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people.”   A dozen or so states approach this issue in a more limited fashion by prohibiting employers from attaching political messages to pay envelopes.
  • At least two states, Illinois and Michigan, prohibit employers from keeping a record of employee’s associations, political activities, publications, or communications without written consent.
  • Washington, D.C. prohibits discrimination in employment on the basis of political affiliation. Despite its seemingly broad scope, this statute has been interpreted to only protect political party membership and not (1) membership in a political group, or (2) other political activities, such as signing a petition.

These laws vary considerably from state to state, so it is important for employers to consult the statutes in each jurisdiction in which they operate and ensure that their policies and practices are compliant.

Employer Access to Employee Social Media.

As employees turn to social media to discuss the election and other political and social issues, employers should remain mindful of restrictions on their ability to monitor or discipline employees for their social media use.  In addition to potential issues under the NLRA and state-level free speech guarantees, the federal Stored Communications Act (“SCA”) and a number of state statutes also regulate an employer’s ability to monitor employee social media activity.

The SCA affords privacy protections to certain electronic communications.  Although the law predates the advent of social media as we know it today, courts have applied it to unauthorized access of employee social media accounts.  Therefore, employers across the country should exercise caution before accessing employees’ social media accounts without their authorization or coercing employees to turn over information posted on social media.  Such actions not only carry risk under the SCA, but also under various state laws.  For example:

  • Approximately half a dozen states – including Colorado, New Hampshire, and Vermont – prohibit employers from requesting that employees change their privacy settings to make information on social media accounts visible to their employer.
  • In more than two dozen states – including California, Illinois, Louisiana, Maryland, New Jersey, and Virginia – employers are prohibited from requesting social media usernames and passwords from employees.

Despite these limitations, employers generally have significantly greater leeway to monitor social media activity conducted on the employer’s systems when such monitoring is pursuant to the employer’s written policy.  In addition, many of the statutes prohibiting employers from requesting social media log-in information contain exceptions that allow employers to request this information for the purpose of accessing an employer-owned device or account.  Employers relying on their internal policies to justify action with an impact on employees should always be mindful to interpret and apply those policies in a consistent and otherwise non-discriminatory manner.

*     *     *

All signs point to this year’s election season being one of the more contentious in U.S. history.  Given the wide range of federal, state, and local laws protecting employee speech and political activities, employers should: (1) review their policies to ensure that they are compliant with the laws in each jurisdiction in which they operate, (2) communicate these policies to managers and supervisors and provide effective training where necessary; and (3) monitor compliance on a regular basis.

© 2020 Proskauer Rose LLP.
For more articles on the election, visit the National Law Review Election Law / Legislative News section.

Federal Appeals Court Hands Down Important Ruling in Overtime Exemption Lawsuit

A federal appeals court earlier this year handed down an important ruling in an unpaid overtime lawsuit brought by a plaintiff who claims that his employer violated various provisions of federal wage and hour laws, including failure to pay overtime.

With the Fifth Circuit Court of Appeals’ ruling, employers will no longer be able to satisfy the salary basis component required to qualify an employee as overtime-exempt under federal wage and hour laws.

According to the unpaid overtime lawsuit, filed in U.S. District Court for the Southern District of Texas, the defendant Helix Energy Solutions Group violated the Fair Labor Standards Act (FLSA) when the company failed to pay the plaintiff his premium overtime wages.

Under the FLSA, employers must pay overtime-eligible workers premium overtime wages calculated at one and a half times their average hourly rate of pay for the time spent working past the 40-hour per workweek overtime threshold.

The plaintiff’s lawsuit claimed that he was improperly classified as overtime exempt when Helix Energy Solutions paid him a flat daily rate, regardless of the number of hours he put into his job each week.

The plaintiff claimed that he regularly worked more than 40 hours in a week on an oil rig but was not compensated with any additional premium overtime pay.

Helix Energy Solutions claimed that the company satisfied the salary requirements for the plaintiff to be overtime exempt when they paid him a daily salary because his weekly pay was greater than the minimum required under the FLSA.

While the trial court agreed with the defendant and dismissed the plaintiff’s case, the Fifth Circuit Court of Appeals rejected Helix Energy Solutions’ argument on appeal that it satisfied the criteria to classify the plaintiff as an independent contractor.

By ruling in favor of the plaintiff, the Fifth Circuit Court of Appeals, which covers Louisiana, Mississippi, and Texas, now brings its interpretation in line with the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee.

Sources:

Buckfire & Buckfire, P.C. 2020
For more articles on employment litigation, visit the National Law Review Labor & Employment section.

COVID-19: FCA and PRA Updates on Working from Home and Key Workers

On September 24, the UK Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) updated their respective statements, originally published in March, regarding key workers and working from home during the COVID-19 pandemic. Both the FCA and PRA advised firms to follow government advice on remote working until notified otherwise.

In addition, the FCA further updated its statement in respect of work-related travel and the responsibilities of senior managers under the Senior Managers and Certification Regime (SM&CR), explaining that:

  • firms should continue to discuss working arrangements with staff and support their employees in facilitating appropriate working arrangements; and
  • senior managers are expected to take account of changes in the applicability of local and national lockdown restrictions and to review and update employee working arrangements on a continuing basis.

A key financial worker is one who fulfills a role that is necessary for a firm to continue to provide essential daily financial services to consumers or to ensure the continued functioning of markets. Firms should identify a key worker by determining which activities, services or operations, of which, if interrupted, are likely to lead to the disruption of essential services to the real economy or financial stability.

Individuals essential to support functions so identified are that firm’s key financial workers. Firms should also identify any critical outsource partners who are essential to continued provision of services, even where these are not financial services firms.

The FCA also suggests that firms consider issuing a letter to all individuals they identify as key workers. The FCA recommends that the letter includes a notice, expressly stating “the individual has been designated as a key worker in relation to their employment by [firm name]” and is signed by someone with appropriate authority.

The FCA update on remote working is available here.

©2020 Katten Muchin Rosenman LLP
For more articles on employment, visit the National Law Review Labor & Employment section.

New Legal Duty for Employers and Employees Regarding Self-Isolation in England Comes Into Force

The UK Government has enacted The Health Protection (The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, which came into force in England on 28 September 2020. Failure to comply with these regulations is a criminal offence, the penalty for which includes a fine of £1,000 for a first offence, with fines increasing up to £10,000 for subsequent breaches.

The new regulations place a legal requirement on employers and employees regarding the enforcement of self-isolation for individuals in England who test positive for coronavirus, or who have been identified as close contacts of someone who has tested positive for the virus. An employee who has been instructed to self-isolate must inform his or her employer (or agency, if the worker is an agency worker) of the obligation to self-isolate as soon as practicable. Failure to do this will amount to a criminal offence.

Once an employer is aware of an employee who has tested positive, it must not permit the employee to attend any place of work other than the place where the employee is self-isolating. (This does not apply if an employee is working from home.) Agencies must notify hirers of workers’ obligations to self-isolate.

An employee who is notified of the requirement to self-isolate whilst at the work premises must return home immediately as the period of self-isolation has commenced directly.

Valid forms of notification of the requirement to self-isolate are not specified in the regulations. The only form of notification that the regulations specifically exclude is the National Health Service’s (NHS) COVID-19 smartphone contact tracing app. Other than this, the regulations merely state that if an individual is notified that he or she—or someone with whom he or she has had recent close contact—has tested positive for coronavirus, the individual must self-isolate (usually for up to 14 days) in accordance with the regulations.

Additionally, the regulations do not specify how the employee should inform his or her employer of the obligation to self-isolate. A commonsense approach may be adopted and employers might need to accept that self-isolation could largely be self-certified, much like regular short-term sickness.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

ARTICLE BY Daniella McGuigan of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
For more articles on labor law, visit the National Law Review Labor & Employment section.

What is the Pregnant Workers Fairness Act and What Happens if it Becomes Law?

The House of Representatives passed the Pregnant Workers Fairness Act (PWFA) (H.R. 2694), which could have major implications for companies around the country. If enacted, the PWFA would require most employers to provide reasonable accommodations for pregnant employees along the lines of what is required for disabled employees under the Americans with Disabilities Act.

According to the House Committee on Education and Labor’s research, 62% of workers have witnessed pregnancy discrimination on the job, which can take the form of “losing a job, being denied reasonable accommodation, or not being hired in the first place.” This discrimination can be particularly damaging to Black and Latina employees, “who are overrepresented in low-wage, physically demanding jobs,” a harsh reality that is intensified during the COVID-19 pandemic given that pregnant women “who contract the virus are more likely than non-pregnant women to be hospitalized.”

While federal laws, including the Pregnancy Discrimination Act and the American with Disabilities Act, protect pregnant employees against certain forms of discrimination, the House passed the PWFA because “there is currently no federal law that explicitly and affirmatively guarantees all pregnant workers the right to a reasonable accommodation so they can continue working without jeopardizing their pregnancy.”

If it becomes law, the PWFA will provide that:

  • Private sector employers with more than 15 employees, as well as public sector employers, must make reasonable accommodations for pregnant workers and job applicants so long as the accommodation does not impose an undue hardship on the employer;
  • Pregnant employees cannot be retaliated against for requesting a reasonable accommodation and cannot be denied employment opportunities, or be required to take leave if another reasonable accommodation is available; and
  • the remedies available would include lost pay, compensatory damages, and attorneys’ fees

Hundreds of organizations, including the business community, civil rights groups, and employment/labor advocacy organizations have endorsed the PWFA. Next stop is the Senate, where the bill has been referred to the Committee on Health, Education, Labor, and Pensions. The intersection between pregnancy and disability discrimination, including the reasonable accommodations for employees that may be available, will continue to be a key employment law area to watch.

© 2020 Zuckerman Law
ARTICLE BY Eric Bachman of Zuckerman Law
For more articles on labor law, visit the National Law Review Labor & Employment section.

When Increasing Productivity Can Backfire

Time theft, especially in an age of booming remote work, is a serious concern for employers.

Time theft’s cost on productivity motivates many companies to explore ways to reduce it.  In a recent case, time theft motivated a company to implement a timekeeping system that clocked employees through their fingerprints instead of the usual badges or employee numbers.  As this case illustrates, however, an attempt to increase productivity by decreasing time theft can quickly lead to bleeding resources into litigation.  Further, in some circumstances, the bleeding can turn into hemorrhaging, such as when a defendant finds itself simultaneously litigating in state and federal court.

In Burlinski v. Top Golf USA, Inc., No. 19-cv-06700, 2020 U.S. Dist. LEXIS 161371 (N.D. Ill. Sep. 3, 2020), the defendant faced a class action lawsuit by former employees over alleged timekeeping practices.  It allegedly required its employees to record their time by scanning their fingerprints.  The defendant’s purpose for using fingerprints in lieu of timecards or unique employee numbers was to prevent time theft by precluding employees from recording time for anyone but themselves.

The plaintiffs were employed in Illinois, which implicated state privacy laws.  Illinois is one of a few states with laws regulating the collection of fingerprints and other biometric data.  A company may be liable under the Illinois Biometric Privacy Act (“BIPA”) if it does not:  (1) maintain a public retention and destruction schedule before collecting biometric data; or (2) acquire written consent prior to collecting biometric data or disclosing such data to third parties.

Procedural trouble began when the defendant removed the suit.  While the district court was evaluating the defendant’s motion to dismiss and the plaintiffs’ motion to remand, the Seventh Circuit issued an opinion that changed everything.  In Bryant v. Compass Grp. USA, Inc., 958 F.3d 617, 624-26 (7th Cir. 2020), the Seventh Circuit ruled on whether district courts had Article III jurisdiction over BIPA claims.  The court found there was jurisdiction over claims alleging that a company failed to obtain written consent prior to collecting biometric data.  The court, however, found there was no jurisdiction over claims alleging a failure to maintain a public retention and destruction schedule prior to collecting biometric data.  In other words, federal courts have jurisdiction over some BIPA claims, but not others.  Burlinski contained both types of claims.

Bryant had an immediate effect in Burlinski.  The court remanded one claim to state court and kept the remaining claims.  The court then rejected the defendant’s arguments to dismiss the removed claims, and the defendant found itself simultaneously litigating in state and federal courts.

To sum it up, Burlinski serves as a reminder for companies to vigorously ensure their own compliance with any applicable privacy statutes.  With many services now turning remote, time theft will likely become only a larger problem.  Before implementing a new timekeeping system, however, companies should recall the tale of Burlinski and its double litigation.

© Copyright 2020 Squire Patton Boggs (US) LLP
For more articles on employment, visit the National Law Review Labor & Employment section.

Leave for Oregon’s Volunteer Emergency Responders During Unprecedented Wildfires

On September 9, 2020, Oregon Governor Kate Brown issued Executive Order No. 20-41 invoking the Emergency Conflagration Act Statewide in light of extreme fire danger. Governor Brown’s invocation of the Emergency Conflagration Act remains in effect until at least November 1, 2020, as wildfires continue to rage. More than 1 million acres of land have burned across Oregon since September 7, 2020. To put things in perspective the area burned is nearly five times the size of New York City.  According to Governor Brown, Oregon is facing an unprecedented level of uncontained fire. To put the flames out, Oregon will need all the help that it can get from its courageous firefighters and first responders.

Employers may want to be aware of their ability under Oregon law to grant unpaid leave requests for volunteer firefighters and other first responders who need to perform services to battle the wildfires and perform search and rescue efforts.

Pursuant to ORS 476.574, Oregon private and public employers may provide unpaid leave to employees who are volunteer firefighters, members of rural fire protection districts, or firefighters employed by a city or private firefighting service to perform service in accordance with Oregon’s Emergency Conflagration Act. Pursuant to ORS 404.250, Oregon private and public employers may also “[u]pon request of an employee who is a search and rescue volunteer accepted to participate in search and rescue activities by the sheriff … grant a leave of absence to the employee.”

If an employer provides unpaid leave to an employee who is a volunteer firefighter or search and rescue volunteer, the leave must extend “until release from such service permits the employee to resume the duties of employment.” Once granted leave, the employee has a right to reinstatement to his or her previous position or an equivalent position without loss of seniority, accrued leave, or other benefits. Employers may require employees taking leave for purposes under the act to use all of their available accrued vacation or other paid time off before extending unpaid leave.

Employers that permit employees to take unpaid leave for emergency response activities must follow the prescriptions of ORS 476.574 and ORS 404.250, as a failure to do so may be considered an unlawful employment practice under Oregon law. An aggrieved employee who claims an unlawful employment practice may file a complaint with the commissioner of the Oregon Bureau of Labor and Industries or may bring a civil action in circuit court. Aggrieved employees may be entitled to recover compensatory damages, back pay, costs, and attorney’s fees. Aggrieved employees may also be entitled to equitable relief, such as a reinstatement of employment.

In sum, employers of these covered individuals may want to be aware that Oregon law permits optional leave during this critical time. Employers that decide to provide leave may want to consider carefully their statutory obligations in order to avoid a violation resulting in an unlawful employment practice during the protected leave.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

For more on emergency unpaid leave, see the National Law Review Labor & Employment law section.

5 Ways to Successfully Manage Remote Staff

Managing your law firm staff in the office or remotely can and should look remarkably similar; however, there are unique challenges to working virtual. Understanding this and adjusting your management approach will be the difference between a productive, seamless transition, and one that potentially costs your business. We’ve rounded up 5 ways you can navigate successfully managing remote staff during a pandemic.

Ensure a proper workspace setup

You want your employees to have a comfortable setup that allows them to be productive in the office and working from home should be no different. While some of the usual office luxuries may not be possible (e.g. two computer monitors), ask your staff about what they need at home to create a similar environment. Do they have a desk and proper chair to work from? What type of lighting is available? If they’re relying on their personal computer, is it functional for work purposes? What about a printer? Is there access to high-speed internet? Some employees may not feel comfortable asking for at-home office supplies, and these are just a few of the questions that need to be addressed to allow your employees to work happily and efficiently.

Minimize loneliness and isolation

One of the downsides to working remotely is a sense of isolation, which can lead to anxiety and depression. Consider that employees may live alone, further exacerbating the possibility of loneliness. Identify ways for your team to interact throughout the day, ideally via video and phone versus email or text messaging. Don’t make conversations all about business; make time for small talk. Maintain office structure with designated times for breaks and lunch and consider holding virtual lunches together. Encourage employees to go for brief walks throughout the day to stay energized. Host team building activities such as workouts in the evening or happy hours via Zoom or similar platforms.

Overcome communication challenges

When working virtually, you automatically lose the opportunity to quickly pop into someone’s office and bounce an idea off them, but communication challenges go beyond that. Despite everyone’s best efforts, there will likely be more emails and texts, which, if not carefully crafted, can result in an unintended tone. Combat this by picking up the phone or getting on FaceTime, Skype or another video-oriented platform. It may take more effort and organization but will avoid employees questioning what you meant and an endless back and forth over email. Schedule time to brainstorm and strategize versus just talking about to-dos. While not as natural as having a quick chat in the office, it ensures continued creativity and interaction.

Don’t forget about encouragement and celebrations

It’s important that your staff stays motivated and focused on personal growth. In addition to team meetings, carve out time for one-on-one conversations, too. This will allow you to address any questions or concerns employees have that they aren’t comfortable bringing up in a group setting. It’s also an opportunity to discuss their goals and how those can be achieved. Don’t let evaluations go by the wayside simply because you’re not meeting in person.

Promote camaraderie by acknowledging milestones as you would in the office – five-year anniversary with the firm, birthdays, etc. This maintains positive employee morale and helps to minimize the isolation factor addressed earlier.

Establish a culture of ownership and accountability

Your team’s organization and productivity is only as good as yours. Implement systems to keep staff accountable. For example, schedule regular check-ins at the same time each day/week and use project management software such as Asana to keep everyone on top of projects and tasks. If you need to cancel a team call, reschedule immediately rather than telling employees you’ll get back to them. This allows them to plan their day and prevents wondering when they’ll be able to talk to you about a particular client or issue. Your team will take clues from you on how to best navigate working remotely so be an example they should emulate.

Remember that not every employee is suited to work from home, and you need to do what you can as a manager to set them up for success. This will benefit everyone in the long run.

© 2020 Berbay Marketing & Public Relations
For more articles on the legal industry visit the  National Law Review Law Office Management section.

The Bad Old Days: Why Nostalgia for In-Office Work Is Misguided

Nearly seven months into the pandemic, with “regular life” a distant memory, it’s understandable that some law leaders are grasping for the Before Times, casting familiar habits and routines in sepia and longing for the time when we can get back to the “good old days.”

This nostalgia seems to be driving a recent flurry of articles by senior law partners about how the loss of in-office work will hobble the next generation of attorneys. Without face-to-face interactions, the argument goes, associates will miss out on vital mentoring from senior partners, as well as the camaraderie and casual elevator banter that builds bonds and a sense of shared mission.

While no one can quibble with the latter (working from home can be lonely and boring — nobody ever asks “so how was your weekend?” when you are standing at the coffee pot in your own kitchen), admitting defeat on mentoring should raise a big red flag for anyone following current challenges in retention and advancement at law firms.

If this framing — a white man who holds institutional power saying “I wish I could mentor, but…” — sounds familiar, that’s because we also heard it at the height of the #metoo scandal. As accusations of abuses of power were coming to light and the perpetrators were, in some cases, being held accountable, other male leaders expressed concern, privately or in public, about mentoring women lawyers. In such a “sensitive environment,” what if something they said or did was misconstrued, and their well-intentioned efforts backfired? Best not to risk it. Best to continue mentoring lawyers who remind them of themselves.

Or maybe you have heard it in the context of racial inclusion, when white male senior partners (we hate to pick on them again, but minority women make up only 3.2% of law firm partners, according to the Institute for Inclusion in the Legal Profession’s 2019-2020 review) profess a sincere desire to mentor lawyers of color, except no lawyer of color has ever asked them for their help.

Now we find ourselves in new circumstances, with physical proximity slotting in as the barrier to mentoring the next generation of attorneys. And while it might seem different on its face, claiming that you can’t mentor someone unless you can interact with them in person during business hours is no less problematic than blaming potential accidental sexual harassment or lack of initiative by lawyers of color. That’s because when offices do begin to re-open, the first associates and junior partners to return will be white men. (Surveys and statistics show that lawyers in other demographic groups will be contending with remote learning, lack of childcare and care for other family members for far longer.) And under a mentoring rubric that views traditional work schedules and practices as essential, white men will continue to reap the benefits of the access to power and client contacts and high-profile assignments that they have always enjoyed.

Wash, rinse; repeat.

This problem with equity in training and development is completely predictable. (We are predicting it right now, and so are lots of other people.) Law firms have proved themselves to be extremely adept at solving all kinds of complex predictable problems, so this one should be no different. Of course law leaders acting in good faith can create new systems to sustain mentoring in this extraordinary time, and ensure that mentoring includes all attorneys, regardless of gender and race. (Whether they actually want to is a different question, but also an irrelevant one, since unprecedented focus and pressure on firms to become more inclusive workplaces means it’s not up to them anymore.) Here are some first steps to making it happen:

Get over your nostalgia. We all miss social interaction with colleagues, and lawyers maybe most of all, given that their jobs play such a large role in their identities. But be careful not to conflate conventions with business imperatives. The legal industry has experienced many other big changes that at the time seemed to threaten core aspects of the work process. (“How will we function without fax machines?!”) But then attorneys who were flexible and creative adapted, and law firms survived and found new ways to thrive. When client service is your core value, you find all kinds of novel ways to accomplish it, including by ensuring the critical development of powerhouse diverse teams who can meet client needs.

Acknowledge that the old mentoring system was already broken. It worked for some lawyers, but not for everyone, and in 2020 it is unacceptable to pretend like that’s not true. Mentorship and, even more important, active sponsorship, doesn’t happen “naturally” — it results from systems designed to yield those outcomes. Brokering a client relationship with a junior partner on the golf course at your all-white country club is the result of a system too, even if it simply feels to the participants like the way things have “always worked.” What would a mentoring system that includes women and lawyers of color look like? How would it be built? How could it be conducted remotely, and does remote work actually present some opportunities for equity that are not present in person at the office? When we stop revering the old ways of doing things, we open up space to think big and create something new. That should feel exciting, not limiting.

Get worried about the right things. All snark aside, law leaders should be concerned about how the pandemic will impact the careers of the next generation of lawyers. It is definitely harder to mentor from a distance, but an insistence on in-person connections will only (and very predictably) lead to inequality. Without thoughtful interventions, lawyers who return to the office first will get first dibs on high-value work and have greater visibility with leadership, leading to more positive performance reviews, increased compensation and promotions. But you can intervene to create a different outcome. Leaders who care about equitable training and development need to call on the expertise of diversity and inclusion experts for support in designing an approach to remote mentoring. It is possible, and they know how to do it. One thing is for sure: you won’t get there by applying yesterday’s solutions to today’s problems.

No question, law leaders are facing some of the hardest challenges they’ve ever seen. Let’s not make matters even worse by clinging to outdated thinking that will hobble our progress on equity and inclusion.

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