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The Risks of Co-Working Spaces

December 9, 2019

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

WeWork and other office share places are growing exponentially.  WeWork in many cities is becoming the number one tenant in many office buildings.  These services provide everything from headquarter space, office suites, private offices, and shared office spaces.  Generally, these services provide fast internet, full office access (e.g. printers, etc.), refreshments (including alcoholic refreshments), lunch and learns, and more. 

What are some of the risks of using these spaces?   The combination of the anonymity of users of the space, the absence of policies governing conduct, and the availability of alcoholic beverages at many locations can be a recipe for bad behavior. That behavior often comes in the form of sexual harassment but may also include theft and other unwanted behavior.

The owners and those operating these shared workspaces are not off the hook for liability, if, for example, something is going on and brought to their attention.  Employers are also liable.  Those having employees working in these spaces need to make sure there are policies of what is acceptable and not acceptable when working in a shared space.  They need to provide contact information to their employees in case situations occur, and they need to investigate any complaints that come their way.

It’s not as simple as signing up for space and employees are on their own.  It is a situation which is an adjunct workspace that needs monitoring.  When multiple employers are involved in an investigation, the operators of the workspace should be able to facilitate.

Further, before any agreement is made, make sure to walk the space to check if there are any ADA or similar type issues.  For example, Olsen v. WeWork Companies, Inc., filed a federal class-action complaint under the Americans with Disabilities.  New York state law claimed WeWork failed to “construct, maintain, and operate its website” in a manner that was accessible to and “independently usable” by him and other visually impaired people. He identified at least 10 specific examples of how the website limited his ability to review and access WeWork’s offerings.

In another case filed against a shared workspace, Kiler v. Bklyn Commons, LLC, a similar class action complaint was filed against Bklyn Commons, a co-working space in Brooklyn, New York. The lawsuit highlighted the website’s lack of alt-text equivalents to explain concepts presented by graphics on the web screen, lack of accommodations for blind customers to fill out online forms, and a blind user’s inability to access drop down menus, image maps, and the website’s shopping cart to complete transactions.

Although these lawsuits targeted the operators of the workspace, the employer could be dragged in for not ensuring employees’ access to ADA rights in these workspaces.   Therefore, HR needs to have specific handbooks for employees who work at these offsites, especially on dress, conduct, alcohol, and other policies that are specific to working in an anonymous forum. HR should physically visit the space or alternatively have a virtual tour of the space, while developing policies for working at these locations.  Moreover, these policies should coordinate with the workspace operator’s policies (etiquette, harassment, etc.) so it will be a seamless effort to control unlawful or undesired behavior. 

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