Failure to Launch: Why Is Your Firm Failing To Be A 21st Century Employer?
By Jessica L. Mazzeo

Back in November 2017, I wrote the article, “Why Law Firms Should Already Be Embracing the Mobile Workforce”.  That piece mainly focused on firms having work from home policies for attorneys and only slightly touched on similar policies for staff.  Six months later, it doesn’t seem like much has changed.  Generally, law firms are still slower and less amenable to allowing non-exempt support staff, such as paralegals and secretaries, to work from home.  While the most common reason is that managing attorneys are not open to this flexibility for staff, others argue that even if there was no resistance from top management, compliance with the Fair Labor Standards Act for a non-exempt worker appears unrealistic.  However, I strongly disagree.  It is 2018 – not 1978 or even 2008 – and employers who are failing (and yes, it’s a failure, not an opposition) to meet employee demands and allow for some type of work from home policy are going to be in for a rude awakening.  Maybe not tomorrow, or in five years, but with an estimated 10,000 baby boomers retiring each day, and for which the majority will be fully retired by 2029, the time to act is now as all employees are demanding change.

Proceeding as we have done for decades is not only a failure to launch but a potential crash course in your firm’s future demise.  Employees of all ages – and yes, all ages as millennials are not the only generation that seeks work-life balance – need to be able to better manage both their personal and professional lives.  Lisa Sterritt, a legal management professional in the Seattle area with over 30 years of experience, agrees that firms are long overdue for a shift: “It’s time for a new perspective. I have worked both in-house and at law firms, and I have always advocated for anyone to work from home as needed, or on a set schedule, to accommodate challenges such as long commutes, elderly parents, newborns or illness.  While it can create some compliance challenges in terms of tracking for hours worked or FMLA leave, great employees are worth that effort. The argument that only attorneys should have job flexibility is tired and reeks of privilege.  If you can’t trust your people, nonexempt or not, to record their time accurately, why are they there at all?”

As employers, we have the ability to do this regardless of any actual and/or perceived challenges.  In today’s world, technology not only allows for greater proficiency in the workplace but also grants us the ability to work from wherever we may be.  For those employers concerned with tracking employee time and exact hours worked have a variety of options.  There are several standalone programs, as well as add-on features to existing platforms, that can allow staff to remotely clock in and out as work is performed.  Working remotely should not be an additional cause for concern when it comes to employees taking advantage or not actually working while on the clock.  Imagine how many times you’ve walked down your office hallway and noticed attorneys and staff alike chatting away about weekend plans or the scores from last night’s football game.  In addition, think about how often your workflow is interrupted while in the office, due to back to back meetings or coworkers frequently stopping by your desk. In some work environments, the distractions in the office can actually be greater than those at home. As Sterritt stated above, the employees who earn the privilege of having the ability to work a day or two at home are already trusted and valued to do the work they were hired to do, regardless if it’s at their desk in your office or from their kitchen table at home.  Suzette Welling, Firm Administrator at Taylor & Associates in Central Florida, has found one way to tackle the issue of accounting for time worked outside the office: “We allow staff to work from home for such circumstances as a sick child, needing to be present for home repairs, and the like.  It allows them to meet the needs of their family and the needs of the firm at the same time.  We address FLSA issues by having them post detailed time descriptions to a firm account in our billing system for tracking what they are doing when they are not in the office,” stated Welling.  Nikki Korson, Firm Administrator at Edell, Shapiro & Finnan LLC in Gaithersburg, Maryland added that her firm “historically has not given non-exempt staff the opportunity to work from home, because we did not have the necessary infrastructure in place to control hours worked and avoid FLSA concerns.  However, we have found that creating the necessary portal to allow our non-exempt staff to work from home on limited occasions has provided a greater flexibility for the firm in times of inclement weather, illness, and even extended vacations.  It is also particularly helpful to certain staff who desire the ability to keep on top of things in the circumstance of extended absence, as returning to work after a few days off without contact can often be debilitating.  We are happy to have found a happy medium that works for all parties.”

However, instituting a work from home policy for all staff is not as simple as setting up the guidelines for who is eligible and when.  A few firms that I spoke with allow any employee to work from home one day a month as long as they had a good performance review the last two consecutive terms.  Having a clearly defined policy – and metrics for achieving the benefit – is key.  Not all employees are good employees and not all employees deserve this benefit (because like many things, working from home is a privilege not a right).

You also have to perform your due diligence to ensure that you have enough remote terminal licenses so that your networks can be accessed remotely, ensure any hardware that leaves the office is properly protected with encryption and other anti-virus software and for firms with workers that live in other states, you will also need to make sure that you have the appropriate workers compensation insurance in place.  You also need to take a close look at your employee handbook and policies and review if any changes need to be made, or new policies added, regarding maintaining confidentiality of information and precautions and policies you have in place for work from home staff to remain compliant with HIPAA and other data privacy laws.

While I agree that not all positions should have the flexibility to work from home all the time, I also believe that more positions should have at least some sort of flexibility.  For example, having a virtual receptionist routing calls one day a week – or even having calls forwarded to your receptionist who needs to work from home is an absolute feasible task to accomplish.  There will always be circumstances where you might need to ask other staff to pitch in, but employees understand that it’s a small price to pay when your employer affords you opportunities to work from home.  Amy Bigaj, Office Manager at Personius Melber LLP in upstate New York, reinforces this: “We are fortunate that our partners appreciate the importance of a work-life balance for everyone in the firm and the need for flexibility in achieving that balance. They understand that this balance will help retain valued employees.”

Even though it’s been a year since the Forbes, “9 Millennials Share What Work-Life Balance Means To Them”, was published, and it’s how I closed my article six months ago, it’s important enough that I mention it again.  The article shared the perspectives of nine millennials and emphasized what they considered “work-life integration.”  If you didn’t read the article the last time I encouraged you to, you should read it now.  Achieving a work life balance and the opportunity of working from home is not about a lack of loyalty or an attempt to watch TV at home all day, it’s about life balance.  Think about your first job — or even your current job — and the stresses that are associated with trying to dedicate yourself to your career while also attempting to have a fulfilling home life.  Having the option to work from home isn’t going to solve all of life’s problems but it is a start to showing your employees that you value their wellbeing and needs as much as you value your own.

Reprinted with permission from the May 24, 2018 edition of The Legal Intelligencer. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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