Source: Isaac Mamaysky, UC Davis Business Law Journal, Forthcoming, 2021
From the abstract:
In March of 2017, when we were blissfully ignorant of what was to come in that same month a few years later, an associate professor of political science named Robert Kelly was being interviewed on BBC from his home office in South Korea. About a minute into the interview, his four year old daughter pranced into the room, in the most literal sense of the word, followed by her little brother in a baby walker and, shortly thereafter, Kelly’s horrified spouse, Kim Jung-A, who scrambled to collect the kids and close the office door.
That viral BBC interview, which now has tens of millions of views on YouTube, took place long before our collective experiment in working from home. While Kelly’s experience was truly novel in 2017, it feels like just another day at the office in 2020. If we have not personally had a kid “bust down the door,” as my toddlers like to say, during a Zoom call, then we have seen someone else’s kid do the same. While Kelly’s interview may have still gone viral if it had happened today—this was live on BBC, after all—the whole thing feels far more familiar than it once did.
COVID-19 has upended the workplace as we know it. Employment experts widely speculate that certain industries have fast-forwarded in the direction of working remotely by years. If the future of work for many employees is primarily virtual, what challenges does this entail for employers? What new rights might employees have coming out of the pandemic? In industries that continue operating in person, how should employers accommodate vulnerable employees who request to work remotely? What about non-vulnerable employees who are simply afraid to come in?
While analyzing these and related questions, this article explores the arguments for and against remote work. It goes on to show that the “hybrid workplace,” in which more people work from home more of the time, is our likely future. The article considers the new challenges this raises for employers and the new rights that it bestows on employees. The article concludes by arguing that giving employees choice about their work location is a mechanism for employers to avoid potential liability while boosting workplace morale and increasing productivity; creating a win-win for employees and employers alike.