Episode 66: Remote Work: Gauging Job Performance

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's executive vice president and general counsel, and back on the podcast today is Jennifer Shah from the Shah Law Group. Welcome, Jen.

Hi, Erica. How are you doing?

Lovely. Sheltering in place still.

Can I just say that I can't wait until we're back in the studio. Like, I love doing these, but it's so much more fun when I get to be with you in person.

I have to agree. And teleworking has become somewhat of a new normal, and with that comes all sorts of issues like we've talked about. But what I wanted to talk about today is we're getting a lot of questions and calls from members about how can we evaluate performance when everybody is working from home?

Well, of course, you're supposed to just trust that everyone is doing a fabulous job, that they're fully occupied, that they are going to get everything done to a T, and it's all going to be fine. That's what we all want to think about. And I have to tell you, that's sort of what I've been telling clients. Like, there are objective things that you can monitor. How many emails somebody sent, how many files they reviewed, how many briefs they did, whatever their job is. But the truth of the matter is, it takes a leap of faith, right? These people are home. So the other day, we had this firm Zoom call, and, you know, it's my sort of kumbaya get together once a week. Let's make sure we're all still doing all right. And one of our attorneys who's used to teleworking kind of forgot that she teleworks all the time. She forgot that we were all on Zoom. So she's there in her workout clothes, you know, swiffering the floor, you know, getting the kids breakfast. Like, there's a lot of multitasking that goes on at home, and we just have to understand some people are super efficient at it. I think I speak for many people when I say it's hard to work at home. There are a lot of conflicting things going on. There's a lot of.

Temptations, whether it's what's in the food closet or what my daughter's doing or the garden or the dogs or whatever it is. So I 100% agree that we need to be monitoring performance. It's just we have to get really creative in terms of how we're gonna do it, right?

And one of the things that has kept me a little bit sane when I have been Dealing with some of these COVID 19 related issues is what was life like before COVID 19? And let's be honest, like you said, there are a number of employers that have had teleworking employees for a long time. This isn't something.

But it is new for a lot of employers. And it's also new for many employers to have so many individuals who are out there.

You know, you and I have talked about the legal issues and the morale issues, right? And it's funny, performance is a little of both, right? Performance is a little bit of a legal issue and a little bit of a morale issue.

So let's break it down a little bit because there has been quite a bit of some news reports as well, different ways within which employers can monitor their employees. And when we're talking about teleworking, a lot of it has to do with just simply software programs and monitoring the computer use, which we could talk a little bit about. But let's first start with the basics. Is there a difference between exempt versus non exempt employees when it comes to evaluating performance?

Well, I think there's an inherent difference from the perspective that when you look at how you are paying an exempt employee, you are paying them for the work they do, not the number of widgets they make. Right? So the idea of an exempt employee is there may be no output in quotation marks on a particular day because they've done a lot of planning and organizing and you didn't get the product, the product wasn't ready that day. For most non exempt employees, what you're having them do is actually much more objective. Right? You're inputting data, you're responding to emails, you're taking client or customer calls.

So.

So it's easier to figure out what they're doing. It's a little more difficult with exempt employees.

That difficulty, it's existed even before COVID 19 even came around.

Yes, for sure. But I have to tell you, a vast number of our clients never wanted to agree to telework. They are telework, absolute haters. Right? They don't want anybody at home. They think everybody who teleworks is inefficient and unproductive. So I've been having the other argument for years saying, look, some people are really good at this, some people aren't. But our two lawyers who telework 100% of the time, they're incredibly efficient. So, yeah, these issues were out there before. I think what you said a moment ago is where the rubber really hits the Road, which is that when you look at how many employees are now teleworking, this creates a new issue for employers that really wasn't there before.

Yep, I think that's exactly the case. So let's first talk about some of the hardware software that's out there and then maybe we can offer some non software related tips for employers to use as a takeaway to keep tabs on their employees without, like you said, jeopardizing the morale or having the employees feel like the employer doesn't trust them. Right. So with teleworking, computers have become the conduit, the way within which we all connect. We're recording this podcast through Zoom, which I think Zoom is going to be the, the new trendy name for the year 2020, related to COVID 19 because everybody is now zooming, even zooming.

I'm ubering and now I'm zooming.

That's right, that's right.

Just think about it though. We have social distancing. We have all these terms that may have been around a bit, but nobody used them. They all feel new.

Right. So let's talk about the software programs because there is a lot out there. Yes. That can, for example, how often an employee leaves whatever the computer system is that the employer site and say, goes to Facebook or goes to the Internet and can calculate how many times that employee does it. And the employer can get a report that says, okay, Joe spent a total of an hour today looking at social media, which in an aggregate you think, God, that's a lot. But in reality as maybe 10 minutes here, 10 minutes there, 20 minutes here, 20 minutes there. What are some pros and cons with employers utilizing such software?

Well, here's the first thing. Technologically or technically, you have to have very specific circumstances to have this work. And let me give you an example. If any employees are working on a remote desktop where they remote into the employer's network, most of the time that firm software that tracks keystrokes, activity, et cetera, will not work effectively because it's going through two layers. It's going from the employee's computer through the remote desktop. There are programs that work, but the efficacy of them is really in dispute. And that's been something that we've been looking at with our IT folks for a long time to help clients is look, if you've got these people teleworking, can you get some sort of independent recognition or feedback on what they're doing? If they're calling in through remote desktop or they're accessing through remote desktop. That's going to be a much more difficult problem. The other thing is, and this, I don't know the right way to say this, sometimes you don't want to know what's going on, right? Because here's the problem. You have pretty good employees who are pretty loyal, who are in a pretty difficult situation right now with COVID 19. Do you really want to be getting this report where somebody, you know, the CFO or whomever, is saying, this is crazy. Look at all this lost productivity. Well, compare that to the productivity you have when they go take the federal UI payment and they quit working altogether. So I really think there is a balance that has to be done here. The other thing is, you have to decide what are you okay with. If you're going to let them take rest breaks and meal periods, which of course, if they're non exempt, you have to require it. You're going to tell them they can't be on their computer. Are you going to really sit around and match up? Oh, these were the 32 minutes that Jen was on her meal period. So the time she was at Nordstrom and Pottery Barn and everything else is okay. I mean, you could. Is that how you want to spend your time? My point is it's not as automated as you think. It's not like you're just going to get this easy report that says you have a problem employee. It's just not going to work that way.

Well, I was wondering too, when I've been reading articles about this and sort of just thinking about it, is, you know, who's to say that this isn't happening when the employee's at work? I mean, to your point, to your point is there's this misconception that if employees are not at work, the office, they're not working. And with the computer, the Internet, you know, how do you know that that's not the case? I mean, what Joe might be doing at home is exactly what Joe's been doing at work. He's in front of his computer for his eight hours and he's doing exactly what he would be doing if he was in the office.

That is such a great point, Erica, because that is actually what the sort of research bears out, is that the employee's work habits at the office are exactly the work habits they're going to have at home. So even though I have distractions, my desk at home is clean, I have things organized exactly the way I do in the office. I'm the same worker at home. Do I have to talk Myself out of getting up to make brownies or whatever. Sure. But I don't even have that option here at the office. But my general work style is the same way. That's what you find.

So.

So if you're upset about Joe's Internet usage at home, you better start tracking him in the office. End up with a situation where somebody says, well, I was nice enough to come to the office, and you're tracking me, but you're not tracking Joe, or you're tracking Joe at home but not Louise in the office.

I'm not telling people not to do it. I just want them to know it's not at some panacea that's going to spit out whether or not you have a good employee.

Jen, maybe we should boil this down a little bit and tell me if I'm wrong, but is it fair to say that if you weren't necessarily monitoring Internet use at the office? Monitoring Internet use now to determine whether or not your workers are actually working is probably not the best use of your time or money?

I think that's absolutely right. And I'm going to double down on that when you have some employees in the office and some employees at home. So when everybody is not teleworking, I think that's an even more important point. The other thing is, you know, one of the things I found as I've been managing this law firm now for a long time, is you just give people enough work until they say, I'm too busy. Right. And then move on to something else. So that's the only way to assess capacity. So if somebody has a lot of time on their hands, like I've told our secretaries, our legal assistants, some of them are working at home, some of them are working in the office by choice. But I've told them, hey, you may not be busy eight hours a day, I'm paying you eight hours a day, but you want to go on the Internet, fine. You just better be available for what I need. This is a different time. I would never say that if we were fully occupied and had so much to do. I mean, we still have our great clients, but look, half of their employees are at home. They're not going to be calling us quite as much. The secretaries are not going to have as much work to do by definition. So I feel like we need to be a little more flexible from that perspective.

I think you're right. I think you are absolutely right. And I think that's an adjustment is this isn't work as we know it. We're working from home. But also the productivity might be a little bit less. There might be other distractions. We have employees that are managing distance learning from their children that are going to take them away. So let's close out by just providing some more realistic, helpful ways in which employers, supervisors could manage what their employees are doing. And I'll just kick off with, like you said, you have a weekly zoom check in with your staff, you know, just to assess their well being. But it's also a nice way to just connect with the employees and for everybody to share, you know, the kinds of things that they're working on.

Exactly. And if somebody says, oh, I don't really have many projects. Okay, let's talk about that. Right? You know, this is what, when people ask me, well, should I have people furloughed? Should I reduce their hours? In other words, should I lay them off? Well, you have to think about how much work do you have for them? Because you're going to ask them to be at work. If there's not enough to do, then you have to understand what those consequences are. So checking in is critical. The other thing, I think it's important, and this is important when we're not teleworking, but we don't always do a great job of it. Setting expectations. Sometimes I think people are so afraid of being considered a micromanager that they set no expectations. They expect the employee to read their mind about what needs to be done. If you're expecting ABC to get done, you need to tell the employee, I need ABC to get done. And then if it's not getting done, it's up to them to tell you why that's happening. So in many ways it's the same issue we're having when people are working or. But it's exaggerated because I think managers and supervisors and owners are having our own anxiety. We're worried about, well, how much work is there and how much work are people doing and are they really doing what they need to be doing? So when you couple that with the fact that you're in a rather informal environment, I mean, people can be doing their work in their PJs, right? Then I think you have to understand as the employer, it's even more important than usual for you to set those expectations and let people know what you want, even to the degree of by Friday, I need this. Let's talk about your progress in a zoom call. It's more work for the supervisor. So one of our clients said, you're asking me to do a lot More than I usually do.

I get it.

Because when someone's in front of you, frankly, it's like my daughter going to school, right. When she went to school, someone else took care of all this stuff for eight hours a day. Not that I didn't have respect for it, not that I didn't think about it, of course I did. But now I'm the one going through the checklist. Right. I'm the one making sure we get on zoom calls and do the projects and everything else. So it's just different.

Yeah. And I think you're right. And I also want to piggyback on the setting expectations. You know, I think we used to, especially when you have a more personal workforce where everybody's together to be able to just walk down the hall and say, hey, by the way, how's it going with this? Or hey, what are you doing on that? And it is easier to collaborate because getting everybody by saying, hey, can you quickly come over here? Other than sending an email, hey, is everybody available for a zoom call? Okay, what time? It's just less efficient that way.

Less efficient?

Yeah, that the employees are going to want a little bit more from you as well. And let's just face it, there might be employees that just aren't busy and they are scared as hell to admit it in a group zoom call. Right. So setting that expectation to say, look, if you don't have anything to report today, that's okay, we understand. Or saying, you know what, maybe a group call isn't always going to be the best. And having more of those one on one check ins. And if the employees, if you're finding that you're unavailable to reach those employees when you need them, then that's where you start to evaluate. Okay, what are you doing? Where are you? You know, what's going on?

Well, and that's part of setting expectations. Right. Like when we sent our secretarial staff home, I said, look, I'm paying you for the full shift. I want you to be at your computer as you would be in the office. If you're not busy, plan a vacation, do whatever you want to do, but I want you there. So when the email comes through, I'm not tracking you down. So I set that expectation up front. You know, the other thing I think that is so important in terms of evaluating performance. It's kind of like writing a job description. I think a lot of times the people at the top don't know what they're evaluating. Yeah, we gotta get really clear, what are our expectations for this position, what is this person supposed to be doing and how am I gonna measure that? This is not an easy sort of check the box thing the way I think some of us would like.

I think that's very well stated and I think also kind of going back to we're at home, we're not at work, but the work still needs to be done. And if the work is generated by outside sources that may are not available or unaccessible because of COVID 19, then it stands to reason that the work that our employees are going to do is going to be suffering as well. Things might slow like you had indicated. So let's just close things off and just give a couple of high level tips. So we've talked about the monitoring employees, which hey, those software are great. It's a great utilization. If you've been using them before, continue using them as you would caution about whether or not you decide to invest in capital and time, you know, to use them at this point. Zoom meetings, like you had said, those annual meetings. But setting expectations is probably one of the best takeaways.

I think it really is, Erica. And here's what I've been thinking. You know, I guess I'm an eternal optimist, but I'm always trying to find, you know, the silver lining and what's happening. And one of the silver linings about this crisis, I think is that we have more time for self reflection. We have time to think about how we could do things better in our business. What better time to sit down and think about what are my expectations for each of these positions? What do I want my people to be doing? Sometimes we're so busy, we never get to that. But now is a great time to do that.

That's really good point and a great place to end. So thank you again, Jennifer for being on the podcast. We appreciate it and I know all of our listeners appreciate too.

Oh Erica, thank you so much. It's always my pleasure.

And thank you everyone for tuning in again to Cal Chamber podcast called the Workplace. Please comment, share and subscribe@calchamber.com.