[Video] - The Return to Work and the Contingent Workforce

Workers will soon be returning to the office in many geographies, but it won’t quite be the same as before. Without a vaccine, employers need to take new health and safety measures that protect the well-being of all their workers, both employees and external workers.

While the focus of the “Return to Work” discussions has focused on employees, most major enterprises also have non-employees onsite including temporary workers, contractors, and outsourced service providers. Key questions such as how many people can be in a facility or how much personal protective equipment is needed all hinge on knowing the total number of external workers.

In this session, Erika Novak, Head of Client Services at Utmost, chatted with Gillian Emmett Moldowan, Partner at Shearman & Sterling, on some of the legal considerations employers should be thinking about in designing a return to work plan. Below are a few questions you can expect to be discussed:

Key Insights

  • Understand how your organization has typically organized and communicated with the contingent workforce and stay consistent. If certain procedures were in place that defined the employer’s relationship with the contingent worker, then you should adhere to those procedures. 

  • Communication should be targeted and relevant. Sometimes it may be okay to segment communications between employees and contingent workers. Or other times it just depends on department or office location. The most important thing is that the communication is received and it is relevant to that worker’s role.

  • Coordination is key to planning. HR should involve key constituents in the return to work plan and coordinate with all vendors whether they be staffing partners, the landlord, security services, or other outsourced services. Without coordination, you run into an issue of different workers adhering to different plans causing confusion.

  • You can’t waive worker safety protections. When bringing workers back onsite, you can’t have them sign a waiver that frees them from any health or safety protections.
  • Employers need to adhere to anti-discrimination provisions. An employer may not exclude an employee from the workplace solely because the employee has a medical condition that puts the employee at a higher risk for severe illness due to COVID-19.

The content in this post is for informational purposes only and cannot be construed as specific legal advice or as a substitute for legal advice. Contact legal counsel for specific advice and guidance.

Video

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Transcript

Saad Asad: Yes. I think we're at critical mass everyone, we'll get started. So this is another live Q&A. Our focus today will be on the return to work and the contingent workforce. We have our special guest Gillian, a partner at Sherman and Sterling. 

And of course, Erika Novak. I'll have them introduce themselves in a second. But for everyone who hasn't joined before, this is a purely educational series, no pitching, no selling, just a way for you to understand some of the implications happening in the contingent workforce industry.

And I'm your host, Saad on the marketing team. I'll be facilitating any questions and answers that you have. You can drop them in on the bottom. If you've never used Zoom before, there's a little Q and A button. Drop-in any questions anytime, I'll try and throw it in. But for now, I will pass it over to Erika and Gillian to introduce themselves.

Erika Novak: Awesome. Thanks, Saad. Hi guys, I'm Erika Novak. Just a quick intro, been in the contingent workforce space for about 15 years, built and evolved programs at eBay and LinkedIn, as well as a consultant with Brightfield Strategies. 

So this is my love, this contingent workforce, and talent and how it's changing the world. I'm so excited to have Gillian here. So Gillian, why don't you share who you are a little bit about your background?

Gillian Emmett Moldowan: Sure, absolutely. Hi, I'm Gillian Emmett Moldowan. I'm a partner at Shearman and Sterling. I'm usually based out of our New York office, but I also live in Jersey City. So not far away from there. 

I am a partner in our executive compensation and governance group, and my practice focuses on advising companies, executive teams, and investors on issues surrounding employment matters in transactional context and day-to-day operations.

Erika Novak: Beautiful. All right, well, to get started, I think everyone's nervous about this topic, right? What does it mean? What is it going to look like? What do I need to do and what should I expect? Right? So before we get into some of the nitty-gritty questions, talk to me a little bit about what you're hearing that companies are thinking about at a high level, what's important to them?

Gillian Emmett Moldowan: Yeah, absolutely. I think what people are trying to do right now is put their plans in place for the most part. In some parts of the United States, people are able to open, but on a large scale, we're still seeing outside of the essential industries, places where people have been in the workplace like hospitals during this time, that it's about putting your plan in place and getting ready. 

And so as we think about planning, one of the key first areas we think about is the team that's going to be put together to do that planning. And that team, there are some people who might be really helpful to have on that team, as you think about it. And certainly, those from the executive team would be involved in that.

But we also think that it will be helpful to have representatives from different contingencies. So you'd want to have HR, but also possibly representatives from different employee groups that are impacted, at least in a manner to get their feedback as to what they're expecting or where their concerns are. So you can start to plan forward in a collaborative way.

Erika Novak: No, and I love that. I think what we've seen in a lot of the webinars that have been out there, especially contingent focused, right? is on business continuity. And, oh, don't forget you're non employees. In some of those that I see, they still only just talk about contractors. 

Or some of the ideas they give, it's folks you already have the emails to. Right? So I love to hear you say it's important for someone to have the voice of the non-employees or potentially a vendor account manager, right? 

Someone who's, let's say, responsible for the bon appetit, your cafeteria workers, or securities or outsourcing where maybe their folks don't have an email, but they're a badge only. The plans that you put in place, these will trickle down to all types of talent, regardless of what type of access they have. Right?

Gillian Emmett Moldowan: Yeah, absolutely. And I think you started to touch on two areas that are important. One and we'll get into it a little bit, are some things people consider when they think about co-employment or joint employer issues. I'll distinguish what those two things are. And we can talk about how those are impacted. 

But you do want to be careful when you're forming your team, that you're not crossing lines that you don't want to cross in terms of how you've organized your business. But you could, for instance, include a vendor representative or someone from your contingent workforce provider on a business to business level, as opposed to potentially including the actual individual who might be the contingent worker. 

Because that might not align with how you've been operating exactly. You also touch on communications. And I think that's something we could potentially jump into.

With communications, that's been something that businesses have been tackling throughout this circumstance because they're dealing with talking to people who are remote. And I know when you talk about the contingent workforce, you don't necessarily have everybody's email.

They might not all have an email related to the company. But even with the whole employee workforce right now, both contingent and non-contingent, there has been a lot of questions about the best way to communicate. 

And I think some of those learnings can be translated over into communicating with your contingent workforce as well, which is making sure that you have perhaps video meetings or town hall meetings or ways for people to log in and become aware of what's going on because sending out emails may or may not be getting to everybody, even your regular employee workforce.

Erika Novak: Yeah. Let's talk about that. Because I've heard several different rules of thumb from companies and you're right. The fear of co-employment directs people to do things oddly operationally sometimes, right? 

The intent was good and then it just gets a little bit weird. And so I've heard two things. One is, I'm going to do a big Zoom meeting, this one's for employees only, and these ones for non-employees. Or, this one's employees and contractors and this one's vendor. 

So I've heard a mix of what's split. Let's break up the classifications. And then I've also heard about, all right for this group, I'm going to have our C suite because I want to make sure everyone knows how important it is.

Safety health coming from the C suite. And then I've heard for maybe the non-employees, it's not going to be them again because of co-employment. Let's do either vendor management or procurement. 

You have something lower. And then mixed. So I'd love to hear, and I know again you're not the attorney for everyone who's participating here. You're not giving legal advice. 

It's important to share that, but I love to have you help dispel some myths about communication. What is okay, or what are things people should be thinking about on who's giving the message to who and in what groups or not.

Gillian Emmett Moldowan: Yeah. One thing to know upon communicating, whether you're talking about your contingent workforce or your entire workforce, is that you want to make sure that the audience is hearing information that's relevant to them. 

So sometimes it really is the right thing, putting aside co-employment concerns, to communicate to different groups of employees or contingent employees separately, because the information that's being provided is going to be different. 

And you definitely want to avoid confusion or having people hear messages that they won't understand if they apply to them or not. So actually one thing we're seeing is that just within the employee sphere, breaking up into groups of people working in different offices, working in different locations, having different jobs, so that the communication is really clear and is directed toward them.

And so in that regard, it very well may be the right thing to have separate meetings for the contingent workforce. And even that may be subdivided into different groups, information that's through staffing agencies versus independent contractors and other groups who are working for you. 

But what you want to make sure is that you have a consistent message to the extent the information is the same for everybody. And so when the message is applicable to everyone, then having people join the same event is not necessarily dispositive of a co-employment or really what people are most concerned about is joint employment. I'm yet to distinguish that for a minute because I know the terms are so commonly used interchangeably.

Co-employment really as a technical matter, as we think of it, has to do with the contractual arrangement between different staffing providers and the client company. And it's really a creature of contract, whereas joint employment and joint employer liability is a creature of statutory law and guidance from the department of labor, for example. 

And just to be a little more specific about that for things that you do need to watch for, co-employment at the heart of it comes down to control issues. Who is controlling the hiring, the firing, the supervising of an employee? 

And so you would want to be thoughtful about if your messages are sharing a different level of control, then you've historically decided to have in terms of what you have as a company taken as your position on joint employment.

Erika Novak: Okay. And that makes sense. Let's get a little bit more to the nitty-gritty because I know when we think about, kind of an all-hands company meeting. And we do know people who are coming from a different supplier, they may be getting two different messages, right? 

Let's use an example, there's a difference between what a staffing agency may do and maybe an outsource vendor. Let's use a staffing agency. So a company that has a client may say, we're ready, come on back to work. But the staffing agency may have just put an all remote, kind of all hands on a policy in place. 

What does the individual do if she's getting two different messages from our staffing supplier and then another one from the end client? What thing should that individual do? And are there ways that the larger company can mitigate that and not have something to be so confusing?

Gillian Emmett Moldowan: Yeah. So, I can start with going back to the cooperation point, because this is going to be a circumstance when you do your return to work planning. That you have to cooperate across vendors potentially, you'd want to cooperate with your landlord to see what policies are being put in place perhaps in your physical space, if you share your building with other companies that lease the building. 

If you're sharing elevators, if you're sharing security. So in terms of how to tackle that issue, one thing, of course, that we would recommend if possible is to get ahead of it by coordinating in advance.

About how the message is going to get to people so that it is clear and coordinated. And again, you'd want to focus that coordination between the vendors potentially, especially if with particular staffing agencies, you have left the control of the employee and when they're coming and the rest of that administrative control to the agency specifically.

If a person does in fact get varying communications, at least at first, I would say that that person should reach out and see if, in fact, those communications are really in contrast to each other. 

Because the staffing agency, for example, could be saying, "We're not having people come back to our offices if that's not necessary, but to the extent our clients need people to come to their spaces, we are working with them to make sure that their spaces are staffed as it's appropriate." And of course, the staffing agency itself could be located in a place that is different from where the client is located with different rules.

Erika Novak: Okay. And that makes sense. Let me dig into another way, because when I ever think about... I always hear about tiger teams. We talked about the tiger team on this communication and what returned to work. And usually, those teams make plans and they come into thou shall not and thou shall. 

And when I think about people, those thou shall not and thou shall plans turn into paperwork that people sign and say, "Yes, I will or yes, I will not do." When I think about it, it reinforces the program and communication, right? How do we get it to the vendors and how do we get to the individuals?

A lot of that time comes into, it is a new onboarding document that someone must read and sign before they start. Right? So my guess is there's going to be a lot of different types of forms and papers that are now going to be part of an onboarding packet, and maybe every non-employee regardless of classification to sign, or at least content type of sign. Can you share a little bit about what is an okay thing to have people review and sign, and what may or may not be an okay thing to have people review and sign.

Gillian Emmett Moldowan: Sure. I think that's absolutely right, Erika. I think we're going to see more policies coming out. Some are going to be mandated. You need to let people know what their rights are, to the extent that they are your employee, and that you do have to provide FMLA or different sick leave for people. 

So there's going to be some mandated new documents, but then I think companies are as part of their return to work planning, going to be giving out to people in their spaces, both employees and non-employees, and in fact, perhaps visitors, so not just your contingent workforce, but even your own clients as a company who might be coming in to visit, about what your policies are going to be about which rooms people can be in. And at what time, when, what the expectations are on different hygiene or hand washing.

So companies are likely to do that. And for the most part, we would expect that those would be policies similar to other use of space policies that are in place. In addition, there is likely to be a lot of return to work planning, a requirement that people have their temperature tested, things of that nature. 

And thus far, the guidance has indicated that you can ask people to have their temperature taken for example, before coming in. And that you would also see probably more information being given about if somebody does have any symptoms, or gets sick, or needs to take sick time, that you may require doctor's notes or otherwise, which also are allowed.

One thing we've seen discussion of is whether there might be any waivers where someone would come in and say, "I am going to waive in advance the fact that I might become sick by coming into this environment." 

And this is certainly an area that may evolve and it's a very new discussion, but as a general matter, if you look at workplace safety for example, generally speaking, you can't waive workplace safety rights in advance. However, you can, in most instances, release them after the fact.

So, especially as people take on shorter-term, temporary roles, perhaps as they're exiting from those roles, there may be additional documents or the same releases that would have been there in any event, but covering more specifically any of these potential issues that could be new to the workplace.

Erika Novak: And with that waiver claim, and you had mentioned like they wouldn't re-sign it, no, no. It would be once they completed their assignment. Is that something that the staffing agency would have, or the end client or both?

Gillian Emmett Moldowan: That's a great question. So it's going to certainly depend on the context of the relationship. And this goes back to some of those joint employment issues, joint employer issues. So a lot of companies take care depending upon the type of staffing that they have to not overstep into control areas and allow the policies and procedures of the agency to supply a workforce to cover that workforce.

And they would presumably other than indicating what their expectations are of any visitor in their space, may not have additional obligations. If however, the company has taken a historic perspective of joint employment or is okay with that, then there may be forms that would relate to both of those relationships because, in effect, the individual has employers to employers as it's a legal matter in those contexts.

So I think it's going to be very company to company-specific as to what their historic approach has been, as to whose form the particular person is filling out in the ordinary of course.

Erika Novak: Okay. Let's talk about anti-retaliation. Because I think part of this is also, when you go to work, regardless of what you've heard on TV, what you actually experienced matters, right? As an individual, I'm not going to say classification or not, because it really becomes like war people. 

So those of you who listen to these fireside chats before, you guys know I'm a big, big fan of Mark Cuban right now, I think he's been a huge advocate for individuals and how companies and leaders should be treating people at this time. 

Oddly enough, a couple of days ago, he posted something about the state of Texas that had opened up. And so he hired a secret shopper to go in and say, "Okay, of the companies that were allowed to open, how many were meeting the guidelines the state had put out to say you are safe?"

And what he found was astounding... I think he had, I forget the exact number, it was at least hundreds of companies that he had had secret shoppers go into. Only 4% actually met 100% of the guidelines. 

We're thinking about okay, well they're just starting to learn. He found a third of percent we're still below 50%, right? So people are saying, it's okay to come back to work, come back to work. When people arrive, they may not actually feel safe or say, "You know what? It doesn't meet these guidelines.

I don't feel comfortable, but I feel like my employer, or someone is saying, you have to go to work and it's fine. It's fine enough," but it's kind of an individual right to decide what's fine enough. What are some of the anti-retaliation laws that individuals can rely on to say, "I don't feel comfortable going back to work, but I don't want to be fired? What do I do?"

Gillian Emmett Moldowan: Yeah. That's a really interesting statistic to hear someone who went out and saw what was happening, but of course, these guidelines are shifting daily. And so even the best-intentioned workplaces are trying to catch up with those guidelines.

And I think as individual workers as well, doing your best to stay on top of what the guidelines are, it could be very helpful as well. Because, if you go into a workplace and you don't feel, for instance, that it seems to be following the guidelines for your particular industry or for your state or location, then bringing that to somebody, the tension and seeing what the plan is, just communicating that could be a very helpful thing to do.

In terms of retaliation, now it's certainly a challenging question to answer in the abstract because it's always going to be fact-specific and what is happening. But a few things, there is new guidance coming out from the EEOC in respect of certain discrimination or potential discrimination in the area of Americans with Disabilities Act, which is a statute that's only applicable in the context of an employer and employee.

Now that it can be a co-employment relationship, but it may be a different result for an independent contractor perhaps, than from other members of the contingent workforce. 

And some of that new guidance indicates things like, that employers can not exclude employees from workplaces because they may be at a higher risk for illness from COVID-19 unless certain direct threat type rules are in place. 

And so in that regard, you shouldn't necessarily be able to be barred from a workplace because of an underlying condition or otherwise, unless the employer could show that that was a direct threat under this new guidance. So that's one aspect that people might have questions about in terms of the underlying issues in that regard.

Erika Novak: Okay. And that's helpful because I think you're exactly right. People are doing their best. And I say people as in companies and people as individuals, right. So while they may not mean to be below the threshold or people at danger, they're trying and they may be getting there. 

So it's kind of understanding what may get better and then understanding like true mal-intent, right? The idea of getting back to work in the economy weighs differently on people. Some on the individuals and some on the employers, right? 

And so I think making sure people understand what they can and cannot say, or be discriminated against in other ways, knowing that contractors, independent contractors, sometimes the law doesn't cover them in the same way. And that's something that you... it reduces your voice a little bit. Let me ask you... Oh, go ahead.

Gillian Emmett Moldowan: I was just asking, one other area people might want to be aware of in terms of retaliation is there is also guidance in the context of sick pay. So if people do in fact need to take time's up time off either for their own illness or in relation to the new expansion of FMLA leaves to care for minor children or otherwise, there are anti-retaliation rules in those statutes as well that wouldn't allow or should not allow employers to retaliate if you need to take those times.

Erika Novak: What about, and this rarely happens. Because I'll say, most suppliers want to be partners with the end client, right? Most of them are going to want to do right by them. And so this won't happen as much, but there are times where you are partnered with the company and you know they're doing wrong, right? 

Are there anything in the overall, and I think about a master services agreement, and again, knowing this is abstract and you haven't seen any contract that I'm talking about, but is there anything that a supplier is able to do or push back on an end client that are normal terms and conditions that they can say, "You know what, we can't do business together anymore." Or, "I need you to change. This as a breach of contract because you are putting people at risk or this doesn't seem to be true."

Is there anything that you can think of, in terms of conditions that people should check their contract to see if they have, just in case there are some bad actors?

Gillian Emmett Moldowan: Sure. So, yeah according... I can't really say any particular contract, not seeing it, but you would want to look at any provisions regarding either cooperation, which there may be, as well as compliance with laws.

Companies should keep in mind, as should suppliers in fact because when you do have joint employer relationships, if that is in fact where you are at, in terms of how the employee and staffing are being managed, then there can be joint and several liabilities for both parties. So on both sides, the client company would want to make sure that the supplier is complying with laws and rules.

And at the same time, the supplier should want to have clients that are also complying with laws and rules, because there can be risks on both ends if they aren't complying with those rules.

Erika Novak: And I know this is going to be another... I didn't prep you for this question, so forgive me. Where would you direct folks if they want to get the most updated information, right? 

Whether it's regarding their state or the industry of what those rules and guidelines are, where would you tell people to look? I think most folks here are in the California group, but we probably have around the United States, where should they go to be looking to find these guidelines?

Gillian Emmett Moldowan: Absolutely. Well, the first thing you do is you bring up a great point, which is a lot of what I've been talking about has focused at the federal level and the rules at the federal level, but states do have their own rules, both about the employer, employee relationships, just generally about workplace safety, about waivers and releases and certainly about their guidelines in connection with COVID-19 specifically in return to work policies and guidelines. One of the best places that people can look is at the Department of Labor at the national level, there are websites or local state departments of labor.

Which may already have available sample notices that employers should be posting in different locations in their onsite in terms of guidance to people who are there and how they should be interacting with each other.

They may have information on what protections as people call it, PPE that may be needed to be provided. So those can be great resources as a starting point in most States and at the national level.

Erika Novak: Awesome. No, that's perfect. And again, I want to say thank you. We're already at the time that went by incredibly fast. I know people will likely want to reach out to you. So on the recording of this, we're going to send a couple of the different articles that your company has posted on this topic. So that will be in the email that's coming from... [inaudible 00:28:28] do you want to bring us home?

Saad Asad: Yeah. Thank you all for joining. Next week, we have another great guest. We'll have David Sun, Strategic sourcing manager at Salesforce. But of course, we'll be sending a recording of this. And be on the lookout for more. We really appreciate you all joining. And please let us know if you have any additional questions or feedback, and if you want to connect with Erika, you can connect with her on LinkedIn.

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