In March of 2020, employers were scrambling to keep their businesses afloat. Now, they’re updating processes and procedures to ensure that they’re prepared for any challenge that may come their way.

In their fifth and most recent survey, the Blank Rome team asked employers about their biggest challenges, their return-to-work models, and how the pandemic has affected work environments and operations. What they found is that procedures are changing and affecting businesses and their people for the better.

Now, employers are more prepared than ever for future business disruptions. According to the survey, 69.54% of employers now have an emergency plan of action in place. They’ve familiarized themselves with the challenges and protocols, and now they know what it takes to pivot. Many are lifting safety protocols, including mask regulations and remote-only meetings, however, they’re prepared to reinstitute protocols should another COVID surge take place.  

Although employers are prepared for future disruptions, many are facing a plethora of new challenges right now. At the top of each employers’ list of challenges is the Great Resignation. Employees are leaving their jobs at an excessive rate, and employers are working to combat this by changing up traditional models. They’re also focused on revamping hiring and retention practices and wage policies to cater to the needs of employees.

Apart from the Great Resignation, the pandemic has brought about plenty of other challenges. But these challenges have proved that great things can come from difficult times. Not only are employers improving hiring and retention procedures, but they’re also more focused on the physical and mental health of employees. Additionally, they’re advancing diversity, equity, and inclusion initiatives as well as environmental and social governance. 

What other changes, challenges, and positive advancements have been brought about by the pandemic?  

In this episode of BR @ Work, host Blank Rome Labor & Employment partner William J. Anthony talks with Brooke T. Iley, partner and Labor & Employment co-chair, and Susan L. Bickley, partner. Will, Brooke, and Susan examine the results of Blank Rome’s sixth Employer Workplace Survey and discuss how companies can address the high-stakes obstacles that will play a pivotal role in positioning their businesses for “What’s Next.”

🎙️ Meet Your Host 🎙️

Name: William J. Anthony

What he does: As a Partner at Blank Rome, Will’s labor and employment practice focuses on class, collective, and multi-party actions. He also provides training on management skills, discrimination, harassment, and other labor topics nationwide. 

Company: Blank Rome LLP

Words of wisdom: “It does seem like we should be prepared for disruption for probably forever.”

Connect: LinkedIn | Email

🎙️ Featured Guests 🎙️

Name: Susan Bickley

What she does: Susan is a Partner in Blank Rome’s Labor and Employment practice, and she’s the Chair of their Houston office. Susan has over 30 years of civil trial and appellate experience in employment litigation for private and public employers, litigation involving commercial and business disputes, trade secret litigation, and the defense of claims against professionals. She serves a diverse range of clients, including publicly held corporations, smaller companies, and start-ups, as well as public entities and their officials.

Company: Blank Rome LLP

Words of wisdom: “In any event, we're in a time of rapid change, a time in which we're really learning what works best for our particular work environment while preserving our culture and traditions of each employer and of lawyer identity and all that.”

Connect: LinkedIn

Name: Brooke Iley

What she does: Brooke is a Partner in Blank Rome’s Labor and Employment practice, serving in the Washington, D.C. area. She counsels and defends domestic and foreign corporations in all areas of employment and labor law compliance and litigation, including wrongful termination, discrimination, harassment, wage and hour class and collective actions, trade secret disputes and data protection, and alleged fiduciary breaches. Brooke also led Blank Rome’s Coronavirus Task Force, implementing a digital COVID-19 impact tracking application to help clients monitor litigation and government enforcement proceedings.

Company: Blank Rome LLP

Words of wisdom: “I think now that people are out more, and they're engaging, and back to being able to see people in person, it has had a real positive impact. So looking forward to the opportunities in the future.”

Connect: LinkedIn

Name: Jim Stapleton

What he does: Jim is Blank Rome’s Chief Business Development and Marketing Officer in Washington, D.C. He works closely with Blank Rome’s attorneys and in-house counsel to optimize firm-client relationships. He has a proven ability to transform marketing and business development across diverse sectors to drive revenue growth, corporate expansion, brand differentiation, and client loyalty.

Company: Blank Rome LLP

Words of wisdom: “As we emerge from the pandemic and hit the new normal, business approaches and processes are changing and improving, but I think in a very positive way. So I'm very, very optimistic for the future of American business.”

Connect: LinkedIn

Connect with Blank Rome

☑️ Join the conversation on Twitter & LinkedIn.

☑️ Subscribe to BR @ Work on Apple Podcasts, Spotify, Google Podcasts, or anywhere you get your podcasts.

The insights and views presented in BR @ Work are for general information purposes only and should not be taken as legal advice for any individual case or situation. The information presented is not a substitute for consulting with an attorney, nor does tuning in to this podcast constitute an attorney-client relationship of any kind.

From Blank Rome, you're listening to BR at Work, the labor and employment podcast for in-house counsel and HR executives. We invite you to join us as we explore relevant topics at the intersection of law, business, and current events, to help you answer questions, solve problems, defend claims, and attract and retain a talented, engaged workforce. Let's get to work.

Welcome to The Blank Rome BR at Work Podcast featuring our what's next survey. This is the fifth in a series of surveys that asks key stakeholders about the many ways that COVID-19 has impacted their businesses. It reviews top employment-related challenges, how employees are returning to the business, and data that shows that the environment has changed over time and shifted to a new normal business environment. We enjoy performing and discussing these surveys because we like to know what's on your mind and we like to be part of the conversation and share the results with you.

Today, we're very happy to introduce three of our partners who sponsored the survey. Susan Bickley is our Houston office chair and is a partner in our labor and employment practice. She has over 30 years of civil trial and appellate experience and employment litigation for private and public employers involving commercial and business disputes, trade secret litigation, and the defense of claims against professionals. She represents a diverse range of clients, including publicly held corporations, smaller companies and startups, as well as public entities and their officials.

Brooke Iley is the chair of our labor and employment group. Based in our Washington DC office, Brooke councils and defends domestic and foreign corporations in all areas of employment and labor law compliance and litigation, including wrongful termination, discrimination, harassment, wage and hour class and collective actions, trade secret disputes and data protection, and alleged fiduciary breaches. She represents clients in negotiations, litigations, and arbitrations nationally in these areas.

Will Anthony is moderating today's podcast. Will is a partner in our labor and employment group who focuses his labor and employment practice on class collective and multiparty actions, including a broad spectrum of federal and state law wage and hour claims. He has successfully defended against actions alleging misclassification of independent contractors, misclassification of employees, off-the-clock work, failure to properly calculate the regular rate of pay and similar claims. He has also defended class claims under the Fair Credit Reporting Act and discrimination statutes. In addition, Will represents organizations and single plaintiff cases alleging discrimination, harassment, wrongful termination, and breach of contract. Will, we're all very excited to hear about client perceptions of the post-pandemic environment. Let me turn it over to you.

Thanks, Jim. Jim Stapleton is our firm's chief business development and marketing officer who constantly reminds me of something he just said, which he reminds all of us, we want to hear from you and we want to hear what's on your mind so that we can be more effective in providing you with thoughtful and strategic labor and employment advice. And that is one of the reasons we conduct these surveys. So, Susan, I want to start with you. What data point most surprised you from the survey results?

Thank you, Will. I'm really excited to see this next survey results, and to be honest with you, I love these surveys because they represent a snapshot in time from our employer base and they tell us what's going on. One of the things that I noticed, it surprised me a little just because of how dramatic the ship was, early on, in one of our first surveys, we asked how many employers had an emergency action plan, a business continuity plan in case of some sort of emergency or disaster erupted like the pandemic. And the vast majority, and I'm thinking it was really a high number, did not have any sort of plan for an emergency. But now, our survey reflects that 69.54% of our employers surveyed have an emergency plan should another pandemic or other type of business interruption arise and I think that's wonderful.

Couldn't agree with you more, and that's a huge, huge shift in the right direction. And it does seem like we should be prepared for disruption for probably forever. So what surprised you the least about this survey, Susan?

I'd like to say I was not surprised that employers are dropping or planning to drop various protocols that they adopted to deal with COVID-19. Frankly, they're dropping them like hot potatoes. 71% of our survey respondents said that they plan to relax or lift COVID safety protocols altogether, and what that means varies from employer to employer, but let's just say 83% of those responding say they dropped mask usage requirements. 54% have dropped social distancing in meetings and conference rooms and it goes on from there. The survey's very detailed in asking what protocols people intend to drop or to lessen, and I have to say, I'm not surprised. I do think that employers also will probably be flexible, and if circumstances on the ground will change, they'll probably reinstitute some of these protocols. But for now, everybody's in a mindset of dropping them.

Yeah, that's interesting. And I tend to agree with you. I think that employers, if there is a surge or a spike, I think can very quickly reinstate the protocols and everyone's used to them, so it does make a lot of sense.

Yeah.

Brooke, we haven't heard from you yet. What can you say about trends, especially when you look back to Blank Rome's last survey completed in the summer of 2021?

Yeah. Thanks, Will. I have to say the summer of 2021, we were still in the thick of it and we spent a lot of time from then until now looking at trends and predictions to make sure we were helping businesses pivot quickly. The thing that I guess jumped out to me with this survey is that almost 80% of the employers required employees to start disclosing their vaccination status and that was something, back in 2021, where employers weren't asking that question and not many people were vaccinated. There was also a significant increase up to, I think, very close to 40% of employers disclosing that they had issued vaccine mandate policies. That jump was up from just around 15% in 2021. I guess for me, at first, when you see less than half of the employers issuing a vax mandate, maybe that's a little bit surprising, especially with all of the work that businesses were doing to prepare for the OSHA Emergency Temporary Standard and the federal contractor vaccine mandates at the end of last year.

I think, though, when we looked at all of this, we connected some really important trends. I just wanted to take a quick second to point them out. The first thing I would say is that in the middle of all of this, in the midst of it, employers were on the front lines and they still are, but cutting edge decisions in the midst of a heated, philosophical, and political national debate. So if you were an employer operating nationally, your approach could have been very different from one location to the next. I think that original number I pointed out, that 80% asking and knowing whether their employee were vaccinated, went a long way to inform decisions. Some employers didn't need to issue vaccine mandates. They knew that they had a very high percentage of their workforce that was in-person vaccinated. For the remainder of those 50% or more that didn't mandate a vaccine, something that Susan and I talk about all time and we were really successful in advising clients is you don't have to mandate completely.

Many of our clients issued vaccine or test policies. And so employees were given the ability to test at their own expense at their own time if they chose not to provide proof of a COVID-19 vaccine. One of the things that ended up happening is, of course, vaccine rates increased from that without a mandate. And also, employees that originally didn't want to submit to the vaccine changed their minds because they got sick of going for that weekly test. I think that also there's this concept of the carrot versus stick approach that went into play here with these percentage numbers. Lots of employers really looking thoughtfully, and Susan mentioned that business continuity and crisis management planning, they treated this assessment of the vaccine mandate like a true ongoing crisis management plan and they determined whether they were going to use the carrot or the stick. So maybe the stick was the mandate of get yourself vaccinated or you're fired.

In many other cases, though, we talked with clients and advised on the carrot approach, which was incentives, figuring out how do you incentivize people without forcing them? Challenges, games, lotteries saw a marked improvement in vaccine rates, especially in industry sectors and geographies where the vaccine rate across the state was just low across the board, having nothing to do with the employer. So I think there were lots of trends that we saw. The number of vaccinations was probably higher than those mandated policies, but the most important takeaway to me out of all this is my final trend observation, the vaccine rate trends that we saw and that we just talked about really went hand in hand with a trend of decreased workplace exposures to COVID and a decrease in COVID claims across time, so that's a positive note.

Yeah, for sure. So, Susan, does the survey provide any insights into office environment and business operations as we are coming out of the pandemic and I'm knocking wood here?

Yeah.

Knock, knock, knock.

That's right. Thank you. I will join you in knocking wood. So, Will, the survey provides very robust and provides a lot of rich information and insights about where people are now, but let me just touch on a few because I think they're some of the most significant. First of all, it's clear to me from the survey that the hybrid work model is here to stay and employers are in the process of determining what that means for them. 75% of those surveyed, those employers surveyed, said they're going to allow some form of hybrid model. Already 53.33% of the employers say that their employees are all back at work. I don't know what that means until you drill down in other questions, and so interestingly, that it was only 53% that say they're back at work, but another 19% are coming back this spring, and then it trails off from there.

But 11% of our employers that responded to the survey said their employees will never be coming back to the office. So isn't that an interesting observation in itself? So there's a variety of different approaches in response to either hybrid work, the return to work, the return to the office portion of work. And so what we have here is a rapidly evolving business model concerning how people work. And my best practical advice when you have a rapidly evolving model, people aren't used to dealing with it, both on the employer side and on the employee side. We don't have a huge history or established understanding of what that means. So I think the onus will be on employers as we navigate through this experiment, frankly, is that we communicate more clearly, more often about what our expectations are, what the rules of the road are, both for remote work, hybrid work, in the office work, all of that.

So very clear communications. We need to reassess our policies, and our practices, and our procedures from the ground up and see how do they translate into this new hybrid environment? Frankly, the exposures, the legal liability exposures, are going to be different or accentuated in some ways, not accentuated in other ways in a remote environment. Just as one example, which is I know, Will, something that you deal with all the time is the off-the-clock work issue. How do you deal with that effectively? I think policies have to be very clear and there are other tips and tricks that all of us would be delighted to share with you as you navigate this situation.

Also, we are dealing with job accommodation issues when people want remote work and they will perhaps present this as an accommodation that is necessary for some particular reason. How do we deal with those accommodations? And dealing with them consistently will be increasingly important as this new variable is thrown into the mix for our employers. Job descriptions need to be reviewed from the ground up again, because frankly, attendance requirements, what does that mean in this new hybrid environment? We need to be very explicit about that so the expectations are the same on both the employee and employer side. And just as we're, as employers, are experimenting in this new world with what works for them, one thing that's interesting to me is the academics are starting to do experiments as well about in what environment and what form of hybrid model makes us most productive. And I think it's going to be interesting too as more of these experiments or papers come out.

I think Harvard Business Journal or Harvard Business School recently did an experiment involving 130 administrative workers and assigned them to three different types of hybrid work. One was in the office very little, one was in the office most of the time, one was in the office, say, two days a week. And they tried to determine whether employees were more productive, creative, and whether trust could be built under any one of these models better than another. And I think we're going to see more of those kinds of academic experiments coming out as we build trust in the system. I think another thing that creeps into some of the survey results, as you see, at least I see, there's some distrust of is hybrid going to work long-term and I think that creeps in what models people adopt for their particular workplace.

But in any event, we're in a time of rapid change, a time in which we're really learning what works best for our particular work environment while preserving our culture and traditions of each employer and of lawyer identity and all that. So we're in an interesting time and I think that the survey, when you drill down on it, reflects all of that. Oh, and by the way, the Harvard Business School experiment reflected that the middle group that was truly hybrid, being both in the office and working from home, and I think it was two days a week in the office, they did the most, I believe, original work than the other groups, which I thought was interesting. That's just one study though. Thank you.

No, that's really interesting. That's that's great, thanks. Brooke, I know you've spent a lot of time working with employers over the last few years on all of these issues and have really, really been deeply involved in these emerging issues. So what are the biggest challenges facing employers right now?

Yeah. If you think about where we started this, whatever that day was in March when everybody went out and was in complete lockdown, the crisis of that moment was how do we keep business operations running? And now, I think we're all far too familiar with the aftermath of the pandemic, which is better known to me as the great resignation, the great walkout. Our survey results highlighted that at the very top of the list of everything that could be considered right now, employer concerns are, across the board, employee hiring and employee retention. That's no surprise to anybody. It's all those decisions that employers are having to make right now that Susan just talked about. You have to figure out decisions on safety, and the work returns, and that the work distribution with the hybrid models is overshadowed by the fact that there's not enough talent in the pool to go around right now.

I think the number Susan talked about was about 75% of employers reporting a spring 2022 return to the office plan. How employees work when they return to the office, whether it's in this hybrid model, it's also changing, it's in flux, and it's really now, I think, also conditioned on this drive to attract top talent and retain it. Some of the changes that we've seen pretty quickly are revamping and revising hiring and retention practices and policies, looking at those special bonus opportunities, retention bonus, performance payments, sign on bonuses, which means you don't think about the wage and hour issues that you're so familiar with, Will.

Yeah.

But the creative job offers and what does the work week look like now? How do people work? When do they work? Just changes to the traditional model that is keeping employers on their toes. Not only are they having to go out and recruit, but they're also having to make sure that they've got all their policies in compliance. I also want to point out two points or two factors that weigh here as primary concerns or challenges that are probably beyond the scope of our discussion today but are important to note from the survey. The first one is clear concern with misappropriation of trade secrets and unfair competition. Look, we have a robust, as you know, trade secrets and competitive hiring practice group that's nationally acclaimed and they are operating on all cylinders plus five.

There is such an explosion of theft of company information and theft of customers, violations of non-compete agreements, and it's because it's an unprecedented time. You've got this massive movement across all sectors, industries, and at all levels of employment positions. I think that's an underlying concern and there's a lot of thought into what do agreements look like when we hire people? That's coupled with the fact that you'll see, as you know, the state onslaught of regulations now that are trying to dilute and diminish the enforceability of these noncompete and early employment agreement restrictive covenants across the board. So it's a challenging time for employers to bring in talent and to keep them.

Yeah, there's just so much going on. Susan, there is a lot of valuable information in this current survey. Do you see this as a positive change for employers from past survey results?

Yeah, I really do. Let me give you a couple of examples. First of all, our employer's attitude is much more hopeful for the future. We've surveyed not only practices and procedures, but attitudes, and I will let everybody read for themselves how that has changed, but it's sky high. Now, people are very hopeful for looking ahead, which is wonderful. I think the survey also highlights the flexibility and resilience of our employers that we've regularly surveyed in response to this really unprecedented global crisis. One thing that I see that is very helpful, and I think good for everybody, is employers are being highly responsive to the needs of their employees. I think this probably results not only from this being a very competitive marketplace for employment for employees with 47% of our employers surveyed saying that they've seen higher than expected turnover recently.

So, one, a competitive job market out there or a competitive hiring market, and two, the pandemic has refocused us all collectively, including our employers that we've surveyed, on health issues. So employers are very much focusing on mental and emotional health. 52% of those surveyed have employee wellness programs that have been implemented, and I think overall, we see a lot more focus on whether employees needs are being met, an increased willingness to be flexible to those needs, which is good, good for everybody. Now, we're working with that new model to make sure that the policies and procedures appropriately follow and that we do everything in our power to reduce any litigation, exposures, or liability exposures that result from there being a little more confusion out there in the employment marketplace. So I am very hopeful based on the information that I see in the survey. I see a resilient employer group that is rolling with the punches as they come with respect to the pandemic, but now, working ahead. They're getting ahead of the game. Don't you think too, Brooke?

Yeah. I don't mean to jump in but I was just going to add one thing. I think that that's such a positive point, looking ahead. And one of the other things that I see from the survey is a real focus on advancement in diversity, equity, and inclusion initiatives, as well as environmental and social governance. So those are real positives to take away as well.

No, I agree with you. Interestingly though, I think it was only about half of our employers had diversity, equity, inclusion programs in place. That's what I recall from the survey.

But there were more moving towards unconscious bias and other trainings, so at least starting the process.

Yeah, I totally agree with that. I totally agree with that. So looking at what's next, I know that Brooke, and Will, and I all hope that Blank Romes programs have been helpful to you, and we're always looking at what's next and wanting to know what's on your mind. So we'll continue to do these surveys, which have been so helpful to me personally, as providing a snapshot of where you are and what's going on out in the employment community.

That's really, really terrific. Thank you both. Jim, when can people see the results of the survey?

Well, thanks, Will. And thank you, Brooke and Susan. We're going to launch the what's next survey results on the website today, along with an announcement for the podcast. So we'll also look for future public sharing of the survey, including future media placements, webinars, and notices for the next survey. Thanks, everyone.

That's great. And let's just close with a few positive thoughts. So can each of you just, I'm going to start with you, Susan, give us a positive thought?

Well, I'm excited that everybody else is more optimistic. The survey made me feel better.

All right. Brooke?

Yeah, I think that's right. I think we hit a point in our surveys where people thought things were better, but they just weren't optimistic. They were exhausted. And I think now that people are out more, and they're engaging, and back to being able to see people in person, it has had a real positive impact. So looking forward to the opportunities in the future.

Awesome. Jim, any thoughts?

I think this shows that as we emerge from the pandemic and hit the new normal, business approaches and processes are changing and improving, but I think in a very positive way. So I'm very, very optimistic for the future of American business.

That's great. Well, thank you all very much. And thank you to all of our listeners. And consistent with today's theme, if you have any thoughts, suggestions for future topics or would like to join us, we would love to have you. So thank you very much for your time.

We appreciate you joining us for this episode of BR at Work. To continue the conversation with a team of attorneys that understand your business, your needs and priorities, and the unique risks you face, visit us at blankrome.com. The insights and views presented in BR at Work are for general information purposes only and should not be taken as legal advice for any individual, case, or situation. The information presented is not a substitute for consulting with an attorney, nor does tuning into this podcast constitute an attorney-client relationship of any kind.