Boxers in the Boardroom: Work from home law with a little help from Hegel, Bentham and Steinbeck

“If you can go to a restaurant in New York City, you can come into the office. And we want you in the office,” says CEO James Gorman. On June 17th, the Morgan Stanley CEO made it clear that working from home would very soon cease to be an option. For a 60,000 strong workforce in the United States to employ the restaurant-office tit for tat formulation is telling for its possibilities in future policy. The analogy, while seemingly iron-clad, may go down differently with the millennial office-goer, who have already evolved into a being of track pants and pyjamas. There has been much talk of diverging post-pandemic office rituals. Yet, the question of whether the legislator can turn such an unspoken rumour into law and its effects on economics and labour requires analysis.

From an economic perspective, the analysis requires taking into consideration the productivity of the employers.

The productivity paradox is a crucial element in any policy that is being formulated in the aftermath of the pandemic. While the UK slowly finds its way back to bustling streets, the pandemic is still far from over for many countries. The arteries of London are pulsing back to life, with tube stations slowly moving back to capacity. According to a Bloomberg report, something as small as commuting time has been a factor in overall productivity, with studies finding economies being lifted by 5% due to employees working from home.

Facebook’s Mark Zuckerberg has famously reiterated the work-from-home as a work-from-anywhere opportunity. A rare position to accumulate talent from all over the world. But the impact of remote work on immigration, labour law, and the regular management of companies, in general, is yet to be measured.

Similar to JP Morgan, Chase CEO Jamie Dimon’s position, Gorman said, “Returning to the office was particularly important for junior members of staff who were training on the job. “The office is where we teach, where our interns learn. That is how we develop people. Where you build all the soft cues that go with having a successful career that are not just about Zoom presentations.”

Alleviating safety concerns, the investment bank chief executive pointed out, “More than 90% of Morgan Stanley’s employees who were already working in its offices were now vaccinated.” However, the sharing of vaccination status has been voluntary, dissimilar to rival Goldman Sachs’ position.

It is interesting to see that old-school Wall Street banks are calling for workers to return to headquarters, whilst tech companies are championing a flexible hybrid model, including in-office and at-home choices. For instance, Google CEO Sundar Pichai shared his vision of the search giant’s new hybrid return-to-work plans via an internal message from the CEO to his employees. The plan would call for around 60% of Googlers coming together in the office for a few days a week, while another 20% will work in new office locations, and 20% are anticipated to work remotely.

A Microsoft Teams Future

Notwithstanding the occasional cat or dog putting a guest appearance in meetings, normalcy has resumed to a great extent. However, there is also a sort of sectoral transition, with software companies seen to be far more adaptive to the so-called ‘new normal.’ Mark Zuckerberg has suggested that half of the workforce should be operating from home.

Taking a Pay cut to stay in Pyjamas

Most people, however, would want to be paid London rates even if they worked out of a different city. This is a critical issue that has arisen in the aftermath of the pandemic. Migration of management-level workers to more relaxed cities while imparting their knowledge is not new. But the rate of such workers did not warrant a policy consideration as it has during the pandemic. As much as the commute is a factor in the payment slips of many corporates, it also supports a lot of ancillary businesses, the decimation of which would harm the economy.

From a Benthamite perspective, the hedonistic calculus may be a bit of a complicated addition when so many factors have not yet been measured. The pandemic has taught us to begin a new imagining of our surroundings, but most importantly, it has taught us patience. As lawyers, policymakers, and the proverbial heralds of change, we measure our statistics with more interest.

A call for an integrated labour/tax law: An ILO intervention?

In order to incorporate employees without borders, many changes are required within the present income tax and labour law frameworks. Employer’s liability for the health and safety of employees has often been restricted to the workplace, but in many jurisdictions, the duty of care extends to any location where an employee is executing the work. As voiced by many CEOs, the fear of employee accountability may, in fact, be outdated, with productivity measuring software being installed a dime a dozen in the post-pandemic age. In order to make employees without borders a reality, the International Labour Organization must pro-actively begin the harmonization of international labour laws. However, this comes with a retinue of political challenges that may offend both right- and left-wing sensibilities.

An end to urbanization and shifting Real Estate prices

Excessive costs of living have always been at the forefront of urban woes. Living in London is an expensive affair, and remote working decimates its need. This, in turn, creates new real estate opportunities due to reverse migration from urban areas. The policy needs to take into consideration all these factors before converting a work from home prerogative into a law. However, there is a downside to taking too much time to concretize the law.

The uncertainty of the pandemic guidelines has left a lot of employees and employers in the lurch as to what their legal duties during such a period should entail. Furlough, sick pay, and sick leave are questions that hang in the balance. A robust vaccination drive has pushed these questions further into the limelight since industries will be looking to make a comeback into the office space.

The number of remote working roles advertised in the UK has risen steadily over the past year, reaching approximately 145,000 jobs in May, equivalent to about 5% of advertised jobs. This means the number of remote jobs being advertised has more than trebled compared with last August and increased sixfold since February 2020, according to the labour market data company Emsi.

However, talent consultants warn that working from home does not suit all staff, with some finding it hard to remain productive and motivated.

Few workers want to do away with visiting their workplace, said Natalie Douglass, the director of talent strategy consulting at New Street Consulting Group. “What a lot of workers have discovered over the past year is that having the option to work remotely can be good but not having the option to go to the office at all can make a job much harder,” Douglass said.

While searching for an effective conclusion to this article, the authors interviewed Mr. Animay Singh, Legal Executive at Quess Corp Limited, for his observations on working in the employment sector during the pandemic in an emerging economy like India and the possibilities of a borderless future for the workforce of the world.

Q. How do you think employer liability should evolve in terms of health and safety as well as privacy/surveillance in a post-pandemic world?

“Starting with privacy, I am extending the logic from my article into a slightly different domain that I think requires attention. That is the space of employee monitoring technologies sold as services to companies as well as those internally developed by companies. These are by no means novel inventions; they are just extensions of existing technologies used in blue-collar jobs that require manual work. (See Amazon warehouses and the criticisms they have drawn for the use of automated tracking etc). These technologies have existed in the white-collar sphere but to a limited extent, those being in the form of monitoring emails for sentiment analysis, location analysis, and browsing history. The difference now is that the new tools and technologies (carrying significant backing in terms of investment, funding, and market value) are far more powerful than before, and we desperately need a debate on this issue to determine its interplay with an employee’s right to privacy. Especially because a lot of this software, often dubbed ‘bossware’ take screenshots, record keystrokes etc. So, say, for example, I log into my personal bank account from my office laptop, my data could potentially be viewed by a third party.”

Q. Is there a link between surveillance and productivity in a work from home environment?

“To add on, I think the privacy point links to the health point in that overzealous monitoring of employees actually leads to lowered productivity due to an inherent lack of trust at the workplace. This can influence worker morale and mental health as well.”

Q. Do you see a situation where the pandemic has accelerated this so-called employee without borders idea?

“No not really, however, my perspective is confined to that of a workforce staffing company that provides a host of services from security and asset management to integrated facility management services. The situation may be different in, let’s say, an IT/ITES company. While my company does staffing for IT/ITES as well, the same is generally for the entry-level roles, thus there is no economic need to look beyond India for these roles.”

“Employees without borders I think is used more in the context of being able to easily connect with people around the world without having to spend money traveling on tight schedules. It allows teams to build some sort of a rapport remotely and thus allows people to achieve more with less. I have, for instance, interacted with teams from Quess Middle East and Southeast Asia seamlessly to oversee litigation and coordinate on strategies.”

“The idea of hiring workers in another country without being formally incorporated therein is definitely one that requires examination. However, it can become problematic without an adequate regulatory framework, at the very least, on a multi-lateral level if not on a global scale. By global, I mean an ILO instrument that lays down some commonly agreed-upon principles.”

Q. Finally, what are the key challenges that you see in this context as a lawyer from an emerging economy in a global context?

“The first challenge I would see is more of an abstract one which is, preparing for the fourth industrial revolution, which is likely to take away a lot of jobs, not only from blue-collared workers but also entry-level white-collar jobs. While there is a lot of work being done on an international level, with the ILO contributing significantly, there is little coverage in national policies.”

“Second would be the rise of gig work and platform work, it is pertinent to note that India’s new labour codes define both these terms and provide for a social security fund for these workers that shall be financed through contributions by aggregators. This involves aggregators contributing between 1–2% of their annual turnover towards a consolidated fund for these workers. Such measures need to be implemented with a basic level of uniformity world over to ensure workers are adequately provided for.”

“The third is not a new challenge, but I would like to speak about it because it is linked to the first challenge by virtue of the fact that it is a direct consequence of the same. That is, unemployment, human beings for the last few centuries have tussled with the problem of unemployment and job creation. In recent times, economists have pointed to economies that have ‘jobless growth’ as potentially risky due to the massive inequality generated by the same. Governments routinely spend massive amounts of money on apprenticeship programs and upskilling funds for workers. However, I feel all of these problems address the symptoms and not the root cause of these issues, which is education.”

“It is time we stop looking at unemployment from the conventional lens of being a solely economic issue. It is a cultural phenomenon that shapes the collective understanding of a population in relation to how individuals perceive themselves and their own self-worth.”

“See the massive movements of labour throughout history towards an area considered prosperous. In Steinbeck’s Grapes of Wrath, families from the American Midwest leave their roots behind in search of California, only to find out that they are being exploited by money-hungry plantation owners. Or in the Indian context, look at Mumbai/Bengaluru (Bangalore) and see how these magnificent cities are built on the backs of slum dwellers who migrated in search of opportunities. More recently, the migrant worker’s crisis during the pandemic.”

“One beautiful example that comes to mind is the way my grandfather speaks of the early days of Jamshedpur, an industrial town in India. Of how a planned city with adequate corporate participation can actually create a lovely societal fabric where people are tied to their means of production.”

Conclusion…. perhaps not.

The authors have tried to place a conclusion, not through a definitive answer, but by means of dialectics, almost Hegelian in nature. The ‘negation of the negation’ tells us that progress always takes place in three stages. original state of the object, its transformation into its opposite (that is, its negation), and the transformation of the opposite into its own opposite. While innovation has grown to great heights during the pandemic, progress for progress’s sake should not necessarily be encouraged. The various factors on a domestic and international scale have to be weighed, not merely through the free market lens, but practical adjustments must be made to supply and demand to create a more sustainable future for labour and employment and the workforce of the world.

This article was written by Aishwarya Bhonsale and Boudhayan Nag, LLM students participating in qLegal, Centre for Commercial Law Studies, Queen Mary University of London

qLegal is an award-winning pro bono commercial law clinic providing free legal advice, public legal education workshops and publications and other resources on commercial, corporate, intellectual property and data privacy law for start-ups and entrepreneurs. Visit our qLegal website (http://www.qlegal.qmul.ac.uk/) to see if you are eligible for our legal advice services or browse through our catalogue of free resources on business-related matters.

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qLegal — Law clinic for entrepreneurs

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We provide free legal advice and resources to tech start-ups & entrepreneurs in the UK, at Queen Mary University of London. @qLegal_ on Twitter and Instagram!