Recently, Zubas Flett Liberatore Law Lawyer, Ashna Gakhar, was featured in an Ontario Municipal Human Resources Association’s (OMHRA) Insights post. The article, which discussed employer challenges in navigating a hybrid work model, is available to read here and below.
Setting Clear Performance Expectations in the Era of Hybrid Work: Legal Pitfalls and Best Practices for Human Resources
The era of hybrid and remote workplaces has brought added considerations for employers. While there is no set rulebook to navigating a hybrid work model, employers can implement several best practices to build a strong, engaged and productive workforce. The first step towards optimizing a hybrid work model starts with setting clear performance expectations. In doing so, employers should take a thoughtful and collaborative approach to their everyday practices. Performance expectations can be managed in several ways, some of which include:
- Effective use of technology to facilitate clear communication
Physical distance amongst employees is no longer a barrier for clear communication. Platforms such as Microsoft Teams, Zoom, and Google Meets can be used to conduct team meetings, schedule regular check-ins, provide regular or spontaneous feedback, address challenges, and to conduct routine performance reviews.
- Establish clear expectations
Team members may or may not operate from different time zones. As such, employers should set clear expectations with respect to availability and email or chat response rates to promote efficiency and collaboration.
- Encourage accountability and independence
A hybrid work model can allow employees to have greater flexibility without micromanagement. Employers should empower employee independence and effective time-management. Nonetheless, employers can enforce performance standards and employees should be expected to seek help as needed. Through the provision of resources and opportunities as well as “open door” policies by the employer through virtual communication channels, challenges, performance issues and even insubordination can be addressed.
- Integrating virtual engagement initiatives
Virtual engagement initiatives can foster a strong sense of community, build company culture, and allow employees to feel a sense of belonging. Social events in which employees participate in a shared activity can encourage teamwork and collaboration, ultimately leading to employee retention and increased productivity and performance.
Legal risks of enforcing performance expectations for remote vs. in-office workers
While both employers and employees may avail the advantages of a hybrid work model, significant legal risks and challenges for employers can emerge. Employers must ensure that in-office workers are not given preferential treatment over remote workers with respect to advancement opportunities. Otherwise, employers may be liable for discrimination and potential other human rights violations under the Human Rights Code. Employers should exercise caution in administering promotions, avoiding biases and unfair treatment towards hybrid or remote employees who might have comparatively less interaction with management than in-office staff. Encouraging and facilitating virtual attendance of remote employees in all meetings and discussions can help to effectively circumvent these risks.
Employers must also be mindful of and be equipped to handle mental health challenges experienced by employees. Remote workers may experience a heightened sense of isolation in comparison to their in-person colleagues. On the other hand, in-person workers may experience increased burnout due to commuting, stresses of the workplace, distractions and other factors. While risks are present with either model, employers mindful of this distinction can help to avoid employees requiring statutorily-protected and/or contractual leaves of absence.
Prudent employers should be prepared to managing employee underperformance in new ways in a hybrid work model. By administering employee well-being initiatives, coaching and mentorship opportunities, and regular communication around expectations and goals, employers can instill employee confidence, boost productivity and overall performance. Nevertheless, in the face of underperforming employees, employers with retention and productivity goals must take due care to avoid “quiet firing”. An employer’s conduct may constitute “quiet firing” if there is lack of support, coaching, and/or career development, leading to an employee’s departure from the organization. In such circumstances, the employer may be deemed to have constructively dismissed the employee, thereby justifying an employee’s claim for entitlements at termination of employment. Generally, constructive dismissal occurs when an employer’s actions fundamentally alter the terms of employment tantamount to termination of employment. Furthermore, “quiet firing” may result in mental health deterioration for employees and contribute generally towards a toxic work environment. Employers may be held responsible for the manner in which employee concerns are handled, ultimately affecting employee retention and employer reputation.
Given these risks, employers are encouraged to develop robust remote work policies that establish clear expectations of employees, which can then be enforced through documented performance discussions. The considerations set out above work in tandem to facilitate a well-balanced, professional, and positive work environment.
With nearly 100 years of combined employment law experience, the lawyers at Zubas Flett Liberatore Law LLP are well-equipped to effectively guide your organization with best practices and development of such policies.
If you have any questions or inquiries regarding managing performance expectations in a hybrid work model, contact Zubas Flett Liberatore Law at 416-593-5844 or questions@employment-lawyers.ca