?A survey released by the U.S. Department of Labor’s Bureau of Labor Statistics (BLS) on March 22 shows that the amount of remote work dropped from 2021 to 2022 but might be starting to plateau.
From August to September 2022, 72.5 percent of establishments had little or no telework, up from 60.1 percent in July through September 2021. In addition, the percent of establishments with some—but not all—employees teleworking was 16.4 percent last year, down from 29.8 percent in 2021.
The percent of establishments with all their employees teleworking all the time was about the same last year—11.1 percent—as the year before, when it was 10.3 percent.
However, 95.1 percent of establishments from August to September 2022, whether they had remote work or not, expected the amount of telework at their establishments to remain the same over the subsequent six months.
“Employers are requiring or strongly encouraging employees to return to work onsite on at least a hybrid basis,” said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City. “The primary reasons given by most organizations are culture and collaboration. And these are valid reasons.”
Employers are less worried about workers leaving for jobs with more remote work opportunities because there are fewer job openings than there were when the economy was hotter, according to Segal. But even with the economy slowing down, many positions remain open because employers can’t find employees with the requisite skills, he added.
“I am not surprised to see less telework,” Segal said. “The pandemic is effectively over, and we need to return to some level of what life was like before the pandemic. But we cannot ignore the experience of the pandemic, either. Employees know they can be very effective [working] at home.”
Industry Trends
The BLS found that industries with the highest percentage of establishments employing remote workers some or all of the time last year were:
- Information—67.4 percent.
- Professional and business services—49 percent.
- Educational services—46 percent.
- Wholesale trade—39 percent.
The industries that most frequently said they rarely or never employed teleworkers were:
- Accommodation and food services—97.9 percent.
- Natural resources and mining—92.1 percent.
- Construction—89.6 percent.
- Retail trade—89 percent.
“While there are certain jobs that do require in-person presence—for example, manufacturing workers, patient care workers—there are a lot of jobs that do not require physical presence, even if traditionalists continue to insist on it,” said Lori Armstrong Halber, an attorney with Fox Rothschild in Warrington, Pa., and Philadelphia.
Labor Market’s Changed Expectations
More job applicants may be expecting remote work to be available in industries where telework is a viable option.
“Employers who are hanging on to the idea of a traditional career ladder with employees in the office working traditional work hours may find they are out of step with the labor market,” said Elizabeth Wylie, an attorney with Gateway Counsel in Denver. “Employees are flocking to workplaces offering remote work and hybrid roles and nontraditional working hours.”
Wylie said that employees are more likely to view their career as a jungle gym—a metaphor popularized by Sheryl Sandberg, former CEO of Meta Platforms, to describe more creative career exploration.
“There’s only one way to get to the top of a ladder, but there are many ways to get to the top of a jungle gym,” Sandberg wrote in Lean In: Women, Work and the Will to Lead (Knopf, 2013). “The jungle gym model benefits everyone, but especially women who might be starting careers, switching careers, getting blocked by external barriers or reentering the workforce after taking time off. The ability to forge a unique path with occasional dips, detours and even dead ends presents a better chance for fulfillment.”
Wylie said the jungle gym metaphor is more relevant today than ever before.
“Time will tell if the flexible workplace models will translate to improved retention rates and increased productivity or if, as some employers fear, remote work and other nontraditional work arrangements lead to decreased productivity and employee disengagement,” she said. “Based upon the economic profitability experienced by a wide swath of industries over the past three years, my sense is the adoption of nontraditional work arrangements is a win-win for employers and employees.”
Legal Considerations
If employers provide remote work, they should update their attendance, leave, time-keeping and data privacy policies to ensure those guidelines are robust enough to support flexible work arrangements, Wylie said.
Employers that have nonexempt employees working remotely must adopt systems that ensure employees correctly record all hours worked, said Ellen Bronchetti, an attorney with Greenberg Traurig in San Diego.
“Employers must address and account for long breaks,” Segal noted.
Bronchetti said that employers should stay on top of other legal issues that arise when there is remote work and should:
- Take another look at anti-harassment and anti-discrimination policies to account for the transition to video calls.
- Review policies and practices to ensure that messaging channels such as Slack are used in line with company expectations.
- Carefully consider requests to work from home or in a hybrid arrangement as a reasonable accommodation.
An employer will have a more difficult time claiming that a worker’s request to work remotely or on a hybrid schedule poses an undue hardship if the business let employees work from home over the last three years, Bronchetti noted.
However, “companies are legitimately concerned about running afoul of state and local laws” if they permit remote work, Armstrong Halber said. She said that legal issues to consider also include tax withholding, workers’ compensation, unemployment insurance and benefits compliance.
If employers are deciding whether to allow remote work, they shouldn’t overlook the importance of proactive management, Wylie noted. Conversations with workers about their careers encourage workers and build corporate fidelity, she said. Such conversations also help develop future leaders who may otherwise go unnoticed when they choose to pursue less traditional work arrangements.
