Even in pandemic-free times, the world of labor laws and employment regulations is at best confusing to an employer, and at worst, overwhelming. Adding the stress of emergency paid sick leave, ever-evolving unemployment qualifications, and shelter-in-place orders is enough to make any boss’s head spin.

Business owners want to keep their employees healthy and safe. They also want to operate in a way that garners at least enough income to keep their doors open. And, at the core, employers suffer from FOMU: fear of messing up.

So much of the internet today is focused on advice and interpretation of the new federal relief packages, tweaked state employment regulations and tax relief opportunities.
If you are operating a business that employs anyone, you have probably been bombarded with emails, texts, webinars, Zoom conferences and even faxes from people who say they can tell you the best way to navigate the shutdown.

The problem is that so many of the laws intended to address the crises created by the virus are changing on an almost-daily basis.
Add to that the fact that most of the interpretations of these new laws and regulations have not yet been tested by courts and administrators, and you are stuck operating in an environment of ambiguity and fear — fear of messing up your employees’ lives and ultimately, your own livelihood.

In times of uncertainty, one of the best exercises you can undertake is to get back to basics. With many of us having to work from home, it is a perfect time to examine not only your workforce, but also the structure and operation of your business.

Are there things that the virus shutdown has exposed as weaknesses in your operations? More importantly, are there parts of your business that have emerged as strengths?
As an employer, you may have already had some intense and frank conversations with your employees as a result of these unique circumstances. What sort of factors should you keep in mind over the next few months so that you will not suffer the Fear of Messing Up?

HOW MANY PEOPLE WORK FOR YOU? (AND HOW DO THEY DO IT?)

Many of the new relief statutes focus on the number of employees in a business. The Families First Coronavirus Response Act, PL 116-127, makes distinctions for businesses of fewer than 500 employees and those under 50 employees.

There are also sections of the law that deal with part-time and full-time employees and those who may be able to work from home. All these categories should encourage an employer to look at its roster of employees.

While a full Fair Labor Standards Act classification audit may be a bit much to undertake during this crisis, it is worth thinking toward the future as to whether certain job descriptions are accurate or need to be updated.

Another more pressing reason to examine your employee list is to make sure that everyone on the list is still an employee.

This crisis has caused some hourly (and even salaried) workers to ask hard questions. Is my reduced hourly schedule enough to allow me to get by and pay my expenses? Does the fear that my employer might not survive the shutdown push me to seek other employment? Are unemployment benefits more stable right now than my current paycheck?

Even though the answers to those questions will certainly affect how many people are on the payroll, it is not always the case that the employee will provide full disclosure. A simple email asking how your employees are faring, or a more detailed request for employee status updates for larger companies, may generate responses to help give you a better impression of where your business roster currently stands, and where it might be headed in the weeks to come.

However, be aware of how requiring a response will affect your timekeeping requirements for employees of varying classifications!

Many employers are discovering how unique and essential certain of their employees are. One of the big fears employers may face is that some of these key employees will be tempted during this time to go elsewhere (with the added guilt that they didn’t appreciate those employees enough while they were on the job).

To many employers, losing essential employees to a competitor would be the ultimate Messing Up. There are numerous reasons why this might occur. Competing businesses may use this slow period to pick off targeted worthy employees.

As stated above, some high-performing employees may feel that their current employer doesn’t pay and/or appreciate them enough. There may be employees who were previously too busy to take a breath and realize that they don’t like what they are doing.

So what can a business owner do to combat those feelings and potential exits?

Communication will go a long way toward smoothing out any rough edges the current situation may be exposing. A virtual staff meeting in which well-deserved, and perhaps overdue, compliments are doled out may ease the feeling of non-appreciation. Gift cards for those who have helped with the transition to at-home work show that they are a valuable part of the team. And certainly, an evaluation of a long-deserved raise, or at least an offer that one can be discussed when operations are back up to speed, will add to that sense of loyalty.

Be mindful as well to incorporate improved communication and transparency into all employment levels from the bottom up. Essential employees are not the only workers who keep your operations running in non-emergency times.

Companies need help at all levels to thrive, and employers would not relish having to hire and retrain an entire new workforce once everything is back up and running.
Anticipating the eventual transition back to regular operations, employers should also start preparing themselves now for inevitable future inquiries on why employees cannot continue to work from home, as they have throughout the shutdown.

It may be that the shelter-in-place orders have shown certain tasks can effectively be done remotely. To some businesses, this may be a plus — lower overhead, flexibility on hours and greater efficiency.

However, it is probably not wise to make any snap decisions on remote work without a thorough evaluation of the job description, including an open discussion with the employee and a separate evaluation of how remote work from one employee or sector may affect other sectors.

Work during the shutdown does not present a fully accurate picture of business as usual. Workloads may be down, or at least focused on different areas.

The key is to keep an open mind and communicate with your employees that one of the unintended benefits of social distancing might be discovering a new way to do something, while recognizing the need to understand how all the new ways must fit together after the crisis.

What better way to make your employees feel like part of a productive team than to include them and incorporate their input in establishing better systems — even systems that arise as a result of the virus.

Overall, a basic tenet for every employer should be that one of their top assets is their employee roster. While the boardroom is certainly stressing about how to make it through the current crisis, successful management also will spend time protecting employees.

The more your payroll feels like they are part of a team, the more likely they are to both be loyal during tough times, and to think and act creatively on how to beat the difficulties. Employers may feel like they are being asked to be too flexible during this time, but they likely will receive rewards for that flexibility in the future.

HOW DO WE COMMUNICATE? (AND WHY?)

At the beginning of the COVID-19 crisis, most businesses found themselves in a whirlwind of new decisions and sudden actions. Do you close the office? Do you have people work from home? Do you have to lay people off, and how many? How do we meet our client and customer needs during this shutdown? Is our information technology able to do so?

A necessary result of those numerous tough decisions was a huge uptick in workplace communication. Emails with new rules during the shutdowns. Video staff meetings to make sure the new rules are working. Responses to multiple questions about current operations and the future of the company.

The various forms of open business communication have spread almost as quickly as the virus necessitating their use.

One of the pressing questions pondered by numerous business network talking heads is: How will the workplace be altered by this virus shutdown? An obvious area will be communication, both in how it is being done and why.

Remote workspaces have caused companies to adapt how employees articulate ideas and share feedback. Email and texting were already widely used, but they have become absolutely essential during social distancing.

Other collaboration platforms such as Slack and WebEx are gaining more popularity because they allow workers to exchange and work on joint content easily. Zoom and other video conferencing platforms have captured not only popular culture but also workplaces. Snail mail and delivery services, while still needed, are sometimes the choice of last resort in a quickly evolving communications environment.

Interestingly, social distancing and remote communication have in some ways made our communications more efficient.

Emails have gotten shorter and more to the point. Conference calls are eliminating some of the nonessential chatter and focusing on overall results.

Video conferencing probably has caused the most tightening up of agendas; whether it’s because most people hate seeing themselves on screen, or due to fears of network instability freezing up a conference that has dragged on too long, managers and groups tend to move more quickly through an agenda than they might in a conference room.

Video conferencing cuts out the “filler” of side conversations that naturally occur in in-person groups, and instead creates an environment that focuses on the task at hand.

Additionally, the difficulty in finding time for all team members to log in together has made groups more likely to consider whether a question can be decided via email instead of an assembly of Brady-Bunch-like TV squares.

While the technological aspects of post-COVID communication will be interesting and likely permanent, one of the more substantive changes could be the increased level of participation all employees may feel in the operations of their workplace.

As noted above, the unique and unsettling aspects of the change to working from home mandated greatly increased communications between management and employees.
For some work sites, the greater level of disclosure was new — and welcomed. For some reason, numerous business owners still believe that the most effective leadership style is to keep their employees in the dark. “If they have a problem, they know where to find me.”

Not surprisingly, that type of black hole management style typically results in rampant rumor and suspicion among the payroll roster in times of extreme uncertainty.

The necessity of “how to work from home” communication may have shown managers that previously were less communicative that more information is not actually a problem but can be an effective solution to false rumors and uncertainty in a workforce.

In fact, most employees have been better able to follow the instructions because they have a sense of how it affects the business. Another positive side effect is the employees may feel more connected.

Crisis communication had an additional benefit of giving employees the chance to give their own input into how best to operate.

The pervasiveness of shelter-in-place situations across the country caused many managers to ask most, if not all, employees: How can you best do your job away from the work site?

In asking that question, not only did they receive helpful tips and processes that allowed the business to stay alive; they also provided the employees with a sense of skin in the game. Employees felt that their ideas were valued and necessary.

In some companies, instruction was traditionally a one-way street. Management dictated what should be done and how. By seeking input from their employees, managers gave them an opportunity to become a more involved part of the team.

The employees felt that the company wanted their ideas to work and would go the extra step to make it happen. That type of teamwork productivity may have been lacking before the virus, but it certainly shouldn’t be undervalued after this is all over.

It may go without saying that with the up-and-down nature of both information about the virus and the restrictions going along with social distancing, communication may seem inconsistent at times.

There is no harm in an employer simply admitting that a change in policy or operations is based on “what we know at this time.” Open and honest communication continues to be the primary objective. Employees are less likely to fault the boss if the everyone feels like they are working together.

Social distancing has underlined the preciousness of human communication. When it is missing, everyone feels it.

Employers should remember that lesson and start building routines that value input — both ways. Their employees will remember how everyone bonded together to get through the shutdown and can apply lessons learned when tackling future obstacles.

HOW DO YOU WANT TO BE REMEMBERED AS HANDLING THE SHUTDOWN?

Ultimately, this virus will dissipate and social distancing will be relaxed. Some businesses will survive and unfortunately others will not. Some will have their operations altered in ways that make them more efficient, while others will have to realize that hard decisions had to be made for the sake of survival.

This shared experience will provide people with a chance to compare how each of us reacted during a difficult time. So, although it may be hard to think about right now, employers and management will eventually need to ask: What type of company were we during the shutdown?

No company and no manager can be perfect. Things that appear to be a good idea at the time may be viewed as incredibly shortsighted — or even callous and dangerous — just a few weeks later.

But the true test of good management usually comes down to the basics: Did you treat your employees with respect? Were you open enough to accept change? Did you pull everyone together as a team? One of the tropes often bandied about is, “Did you put profits over people?”

In some ways, that is an unfair question — people can be consistently employed only if there is enough profit to support them. However, how you balance people and profits, as well as how those profits are distributed, is a valid inquiry.

During this time of crisis, did you try to value your people, communicate with them truthfully, and provide an environment that encouraged teamwork? Did you recognize those employees who may be the lifeblood of your business and let them know their value?

If the answers are yes, you will end up not only with a healthy balance, but a loyal and effective workforce. And you won’t have messed up.

This article first appeared on the Westlaw Practitioner Insights Commentaries web page on April 20, 2020.