Varying Work Models Complicate Employment Practices Liability
Flexible work models can lead to increased discrimination and harassment claims.
The range of work models in use today risks increasing employment practices liabilities, inviting lawsuits over discrimination and reasonable accommodation, wage and hour compliance, and workplace harassment.
Unlike the pre-pandemic era, today’s work model is increasingly flexible—from five-day in-the-office schedules to entirely remote and everything in between. Accurately tracking work hours across these models, particularly for employees entitled to overtime pay, is an arduous struggle that can lead to errors that result in wage and hour violations. Shifting state and local laws governing minimum wages, overtime, and paid leave complicate the task.
Employers that transition from a purely remote or hybrid work model to one requiring in-person work at the office five days per week confront a different risk— charges of discrimination. The Equal Employment Opportunity Commission (EEOC) has reported an increased number of discrimination claims from disabled employees accustomed to working at home who are denied work-from-home accommodations. In fiscal year 2024, the EEOC received 33,668 charges of disability discrimination, a 25-year high.
Insurance carriers confirm that employee claims of discrimination are rising as they return to the office. “We’ve seen discrimination claims coming in from employees with agoraphobia or anxiety about going back to the office and sitting next to people who are not vaccinated,” says Eden Stark, vice president of financial lines claims at QBE North America. “If employees have done a great job working remotely, it’s more of a hurdle for an employer to defend the decision to require them to return to the office.”
Another significant concern is workplace harassment claims as employees communicate and collaborate in virtual video meetings that may be perceived as more informal than workplace meetings, blurring the lines between professional and personal interactions and opening the door to lapses in conduct. Examples of such claims, according to published reports, include sexist comments, offensive jokes, and unsuitable imagery. In April 2024, the EEOC updated its workplace harassment guidance to include online harassment in remote work environments. However, a challenge for employers is ascertaining sexual harassment, due to a potential lack of witnesses.
More traditional harassment claims like bullying, discrimination, and a toxic work environment are occurring as more employees return to work on a full-time or hybrid basis. “We’re in a period of divisive issues, where employees are talking face-to-face about topics like race, gender, and politics that could lead to discrimination claims,” says Talene Carter, senior director of employment practices liability for WTW’s North American practice. “The opportunity for employees to claim harassment is definitely higher when in an in-person work situation.”
To manage these myriad risks, Mary Anne Mullin, QBE North America senior vice president and fiduciary and EPL product leader, says employers must establish clear return-to-work policies, accurate job descriptions, updated employee handbooks, detailed time and payroll records, and a more uniform approach overall to all work models and requests for accommodations. “Above all, employers need to handle the shift in work models with sensitivity,” she says. “It’s a whole new ball of wax.
