This is an excerpt from my chapter in IR Global‘s latest publication ‘A Global Guide for In-House Counsel’, which you can download here.
Are you seeing a shift in employee/ workforce expectations in your jurisdiction?, when it comes to flexibility, length of contract, remote working, hours of work, etc? How can clients both reflect this and protect their business interests in employment contracts?
In the US, and in California in particular, there has been a remarkable shift in employee expectations over the past few years among white-collar employees who we would have previously described as “office workers”. This shift does not necessarily apply to employees working in other sectors, including retail sales, hospitality, construction, transportation, manufacturing, and domestic workers, as their jobs have not significantly changed with respect to remote work.
Many office jobs in California metro areas have become either hybrid or entirely remote. This is due to employees’ insistence that they are able to work remotely and flexibly at least part of the time, along with employer adjustments to pandemic conditions. The expectation of at least some remote work is driven by the younger segment of the workforce, a group critically important to employers during talent shortages for the survival of the business. In our experience, most white-collar employees have a preference for the comfort and convenience of working from home, as well as the opportunity to reduce the amount of time they spend commuting. It is not uncommon for urban workers to commute to work a minimum of 30 to 60 minutes each way, with remote work offering extra hours of free time that would have been spent going back and forth to work.
Apart from fully remote work, the most common hybrid work schedule used currently is two or three days in the office with the rest of the week flexible. This schedule often demands less total office space, and there is a trend towards office hoteling where employees share desk space with others coming in on alternative dates. A growing number of employers are providing the flexibility of up to several months remote work from other states or countries, an option particularly attractive to younger workers. In most cases, it is a perk not an entitlement and can present some complications for employers in terms of supervision, coordinating work schedules between time zones and various regulatory matters.
Most US based employees are at-will employees, a practice that has not changed with remote, hybrid or flexible work schedules. For that reason, relatively few employees in the US have contracts for any specified term of employment. While certain employers are willing to flex hours to accommodate part time work that provides employees with flexibility to do other work, pursue travel or other hobbies, be with family or whatever they choose, that practice has not been adopted across the board by most employers. Labour shortages have required employers in some instances to accept part time schedules in order to hire and retain qualified employees on the terms they are willing to work.
As the movement towards a transient workforce has grown, the law regarding contractor status has tightened in California. With few exceptions, most workers in California are presumed by law to be employees regardless whether they are classified as such by the entity for which they perform services. This removes as a viable option the inclination to classify workers as contractors to simplify compliance.