Fighting the War for Talent in the JAG Corps, Part 1: “Flexing” and DEI in Officer Recruitment

The Judge Advocate General’s Corps (JAG Corps), like the rest of the military, is experiencing a recruiting crisis and continues to evolve its recruitment strategies to ensure sustained accession of talent into the Corps. Flexible workplace accommodations and talent management strategies informed by concerns for diversity, equity, and inclusion are critical now and will be evermore pivotal in the future of the JAG Corps of each branch of the military. 

Recruiting Challenges and Diversity, Equity, and Inclusion

June 12, 2023, was the 75th anniversary of the signing of the Women’s Armed Services Integration Act, which directed the integration of women into the military. This year the Department of Defense also celebrated the 50th anniversary of the all-volunteer force and the anniversary of the desegregation of the military. Reflecting on these anniversaries shows us how far we have come, but the military still has a long way to go in achieving full integration and maintaining its all-volunteer force. As an integral part of the military, the JAG Corps plays a role in achieving these goals. The JAG Corps should be adapting and innovating not only to meet the intent of these laws but also because it is what the National Security Strategy, National Defense Strategy, and National Military Strategy require to remain the preeminent military in the world.

Data shows that 77 percent of Generation Z (those born between 1997 and 2012) said a company’s diversity would be a deciding factor in job consideration. As the JAG Corps focuses on recruiting Generation Z along with ensuring diversity among our senior ranks, it must also demonstrate that it values diversity, equity, and inclusion.

At a recent symposium hosted by the Marine Corps and U.S. Naval Institute, experts opined that the military must recruit more women and immigrants for the future force. In response to polls such as the 2022 Reagan National Defense Survey indicating that the current “wokeness” of the military is detracting from recruiting, Meredith Kleykamp, an associate professor at the University of Maryland and director for the Center for Research on Military Organizations, said at the symposium,

“We are not recruiting whoever the population is that is responding to that poll exclusively. We’re recruiting” 18- to 25-year-olds, who hold “very different views” about social justice. . . . “Sometimes it feels like . . . we’re recruiting the people who are already in” instead of appealing to the next generation.

Todd Harrison, managing director of Metrea Strategic Insights, stated, “the current recruiting system is on an ‘unsustainable trajectory,’ and that to fix it, all the services must think about ‘who the workforce is and who we want to attract and retain.’” Harrison suggested that the Services start evaluating culturally embedded assumptions, “such as the wisdom and necessity of frequent permanent-change-of-station moves.”

At the symposium, Nicholas Eberstadt of the American Enterprise Institute and Richard Fry of Pew Research Center presented data that “showed that immigrants and women are likely to make up a larger percentage of the recruiting pool in 2040, and are more likely to have the education and skills necessary to join the military.” Panelist Lindsay Cohn, an associate professor of national security affairs at the Naval War College, noted, “the changing demographics of the recruiting pool will require a change in culture as well, and to do that, the military must ‘replace the old culture with a positive alternative.’” The panelists at the symposium suggested that change must come from the top down.

Flexible Workplace Policies to Strengthen Recruitment Efforts

From the intricacies of recruiting Generation Z to the complexities of talent management, the JAG Corps must adopt a flexible workplace accommodation model that is agile and applicable across the broad spectrum of legal services that it is required to provide its clients. On May 14, 2021, the Department of the Air Force showed its dedication to workplace flexibility by publishing its Telework and Remote Work Guide. Largely propelled by the COVID-19 pandemic, this guidance captured in policy for the first time the concept that servicemembers and federal civilian employees could utilize telework or remote work flexibility to accomplish their daily duties if approved at the squadron commander or equivalent level.

As an example, since March 2020 (the start of the COVID-19 pandemic), the JAG Corps had no choice but to be flexible and innovative in the execution of legal services for the Department of Defense. Amid widespread mitigation measures such as stay-at-home orders and government facility shutdowns, the JAG Corps demonstrated its dedication and ability to provide world-class legal services anytime, anywhere. The “anywhere” for a lot of legal professionals meant wherever you could get an Internet connection. The JAG Corps was no exception. The utilization of telework and remote work (i.e., flexible workplace accommodations) became the norm for jobs that allowed for this flexibility in areas with high rates of COVID-19.

Many legal professionals working at the Pentagon in the last three years have rarely walked its halls. They have worked almost exclusively from home very effectively. Headquarters staff personnel, military judges, senior prosecutors, senior defense counsels, senior victims’ counsels, and others who can accomplish mission requirements from anywhere are likely well-suited for flexible workplace accommodations. These are also the litigation positions toward which the JAG Corps should direct talent to ensure continued forward progress with the implementation of the largest overhaul of the military justice system since the 1950s.

As an example, the Air Force JAG Corps successfully utilized flexible workplace accommodations before the pandemic even if it had not formalized such accommodations in policy. Litigation personnel assigned to the Air Force’s Government Trial and Appellate Division and its Trial Defense Division have utilized flexible workplace accommodations to execute the Department of the Air Force’s military justice mission on a day-to-day basis for the last ten years. Practically, senior prosecutors and defense counsel rarely are required to occupy offices because their jobs require them to be on the road litigating courts-martial at locations across the world. The same can be said in some sense for base-level defense counsel and victims’ counsel. Many times, the cases they are working do not take place at their “base of assignment,” requiring them to work “remotely” or anywhere they can get an Internet connection. So, while the pandemic forced each Service’s JAG Corps to expand its flexible workplace policies, it was not an entirely new concept.

The JAG Corps has always and will continue to compete with the private sector for talent. This means recruiting strategies will be impacted by conditions in the private legal market. Thomson Reuters’ 2021 Report on the State of the Legal Market found that

[m]ost firms now acknowledge that remote working—though clearly different from in-person operations—can work. Indeed, the disruptions resulting from work-at-home arrangements were less serious than most firms expected. Interestingly, Acritas [a market analysis provider] reports that the proportion of U.S. lawyers who now want to work remotely at least one day a week has doubled from the pre-pandemic period. While 37 percent of lawyers expressed an interest in remote work prior to the pandemic, 76 percent now favor the remote work option.

Based on this data, one can assume that the private legal market is using flexible workplace accommodations to recruit talent.

According to Edina Beasley, a managing director with Major, Lindsey, & Africa’s In-House Counsel Recruiting Group,

[t]here is a war for talent, and attorneys have more leverage than ever. For most attorneys I speak with, being allowed to work remotely has become critical and, for many, their employer’s impending return-to-office policy is motivating them to make a move. That said, with client demands at an all-time high, law firms have been creative and aggressive when it comes to creating incentives to attract and retain talent (e.g., compensation increases, significant bonuses, and long-term flexible working arrangements).

Based on this, the logical assumption is that many of the talented law students and attorneys the JAG Corps seeks to recruit have an expectation that flexible workplace accommodations will be available in some fashion.

The JAG Corps must be willing to adopt as part of its culture the concept that success is not measured by the location where work is accomplished but instead by objective measures of task completion and results. It would be naive to think that all jobs across the JAG Corps are conducive to flexible workplace accommodations, but there are certainly many that would fit the mold. It would also be naive to think that all legal professionals in the Department of Defense would want to utilize workplace flexibility or that their personalities would be well-suited for it. The 2021 Department of the Air Force Telework and Remote Work Guide speaks directly to this, stating, “Remote work and increased telework arrangement can present new challenges and require new skills for individuals and their supervisors. Consequently, not every position nor every individual is suited for such arrangements.”

Flexible workplace accommodations do not just benefit the employee. Research shows that offering these accommodations could benefit the JAG Corps in numerous ways, such as amplifying productivity by removing commute time and extending the workday, enhancing recruitment and retention of valuable team members, and improving staff continuity and coverage. From a business perspective, these accommodations have been shown to increase productivity, lower absenteeism, and spike day-to-day engagement, as well as increase employee motivation and satisfaction.

More importantly, implementing flexible workplace policies would make the JAG Corps a more realistic option for demographics that might not otherwise fit the mold of the traditional family (i.e., a working husband with a stay-at-home wife). For example, women, single parents, and other minority groups would be more likely to join our ranks if they knew there were policies in place to enable them to thrive in both their career and family. Legal professionals do not seek to join organizations that are not equipped to support them and their family dynamics. Because of this, the JAG Corps must evolve.

Critics say that this flexibility cannot be a part of JAG Corps practice and culture because it creates an environment of the “haves” and “have nots.” This argument does not acknowledge current practices in the Department of Defense and the Services, as many already operate in positions that utilize flexible workplace accommodations without issue. At its heart, it is not about the “haves” and “have nots” or rewarding some and not others. It is about leveraging technology and efficiency where possible to further talent management goals. Some positions are not conducive to a flexible workplace accommodation. But the Corps should leverage technology when able. Future generations that will serve will have this expectation.

Recruiting top talent to the JAG Corps has been challenging. Many legal practitioners and litigators, while vastly qualified for many jobs across the Corps, do not want to serve because they can secure more competitive pay and workplace benefits from the private-sector legal market. While the JAG Corps has little control over pay (in large part because it is driven by rank and controlled by Congress), it can capitalize on the opportunity to offer creative incentives such as flexible workplace policies to draw talented legal professionals to join the military.

Conclusion

The next generation of legal professionals will come to the table with different expectations of what an employer can and should provide. These include flexibility, technological innovation, and an emphasis on diversity, equity, and inclusion. The JAG Corps has no choice but to transform as the private legal sector has begun to transform because it seeks to recruit talent from the same pool of legal professionals. If the JAG Corps does not, it risks losing capability and suffering a degradation in the legal services it provides its clients.

The JAG Corps has already proven that it can strengthen recruiting strategies by utilizing flexible workplace accommodations such as remote and telework while also developing a workforce culture centered on diversity, equity, and inclusion. The challenge now is to formalize these policies and normalize their use to ensure the JAG Corps of each Service remains the best legal organization in the world.