Welcome to 2020 Two! It’s hard to believe we’ve been living through a pandemic for nearly 2 years. Workplaces are beyond worn out, stress leaves and harassment complaints continue to increase, parents are juggling remote learning and limited activities for kids once again, and many workplaces struggle to find people to fill the roles.
Yes, it’s all a bit of a mess, but out of crisis emerge new ways to approach issues and novel solutions to traditional problems. Here are our predictions for workplace law trends and changes in 2022.
#1 – Push for Hybrid and Remote Working
Studies over the last year are showing a deep disconnect between senior bosses and employees about preferred workplaces. Increasingly, employees want – and now expect – at least some remote work option, whereas senior levels of management are more likely to continue to see in-person work better for productivity, mentoring and focus.
We are hearing clients struggle to attract talent if they do not offer up at least some remote work. Employees have increasing power right now in negotiations and will simply walk away if they can’t get better work terms.
Here is a PWC 2021 worker survey and a KPMG Hybrid Workplace Guide, each of which points to the trend of the growing disconnect in workforces.
2022 will see more employment law issues around the location of work and terms of employment-related to location.
#2 – Increased Scrutiny of Stress Leaves and Harassment Claim Procedures
Whether a manager or employee, people are stressed out and fed up with the pandemic. As a profound, historical background, we’ve also been living through important and pressing movements over the last couple of years. From MeToo to Black Lives Matters, to the storming of the US Capital, to the politicization of medicine, science and vaccines, to the impact of climate change wiping out cities – we’ve seen it all.
Workplaces will continue to feel the weight of all of this in 2022. The workforce is far more educated and aware of legal rights around leaves, accommodation, harassment claims and how to push for rights to which they are entitled. This means workplace policies are actually being dusted off, accessed, read and relied on by employees for complaint procedures, details around leaves and how to address overall stress-related issues in the workplace.
2022 is a good year for employers to dig into policies and procedures. The odds of them being required are greater than ever and the certainty of common systems for resolving workplace disputes can bring down costs, hostility and HR headaches.
#3 – Challenging Older Contract Terms
As our least sexy 2022 trend, contracts are being flipped upside down from recent caselaw. Keeping up to date is one of the most cost-effective workplace law step an employer can take in 2022.
Much of employment law litigation revolves around employment contract termination provisions and how long of a notice period (or pay in lieu) the fired employee should have received. If that termination provision is out of date or deemed to be improper by a court for all kinds of reasons, the court will set it aside and substitute in the full range of common law damages.
This means, as an example, a contract term of ESA-only minimum notice can be substituted for 3-5 weeks of pay for each year of service. That can really add up for longer service employees.
We recommend employers review their contracts and, in particular, to update any templates you may be using for new hires. It can be tricky to update existing employee contracts, but there is no issue with offering a new hire an updated, legally enforceable contract. Here is our free Employment Contract Checklist to help you sort through what may be missing in your older contract templates.
A cost effective way to roll out updated contracts (and here is our shameless plug) is to buy our Workplace Law Bundle, which contains an up to date employment contract, in addition to other core employment law templates, checklists and guides. You can then cross reference the Bundle contract with your own contracts and/or replace them with the template.
Employment contracts continue to be the prima donna of employment law litigation. The elevated awareness of employees, the increased hiring of employee-side lawyers to advise employee candidates behind the scenes, and the increased cost of termination payments all drive home the need for updated contracts in 2022.
2022 will no doubt be another heavy year full of decision fatigue and cabin fever.
We predict it will also be a year of rethinking some of the traditional workplace norms which are forever changed by a pandemic in a modern age of technology. Location of work, quick and easy access to legal rights, online empowerment to actively and openly address mental health issues (finally!) and the ongoing increase in employment law claims for increased termination packages based on unenforceable contracts all require fresh ways of looking at things.
Employees are driving the bus in many industries right now and employers will need to continue to be flexible about what a modern workplace can look like.
Happy new year!
If you have questions or would like to book a chat with a lawyer, get in touch.