Author: Brett Holubeck

Remote Investigations in the Workplace

Published by Brett Holubeck on October 2, 2020

Image of a person on a computer looking at a forest to emphasize that remote investigations can take place anywhere. — Photo by Steve Halama on Unsplash

Around 42% of workers are working remotely during the pandemic.

This has shifted employment problems from the office to the home and is causing companies to carefully review how they are managing remote workers. Unfortunately, many workers aren’t following company policy and must be disciplined. Before disciplining these employees, companies need to conduct an investigation. Remote investigations are considered different from a typical in-person workplace investigation (guidance on those can be found here).

Setting up for the Remote Investigation

As with any investigation, the most important part is setting the framework to get the right evidence and collect all of the necessary information. In the work-from-home environment and use your own device workplace, there are a number of special considerations.

A business should check to see if employees signed an acknowledgement (ideally this would be in the handbook, but this may have been a new addendum given the impact of Covid) that the company has the right to save information and data from company programs, devices, and software. If your employee is using a company provided device, then all the data should be backed up remotely so that it is not lost should the employee attempt to delete it. This allows you to access data for the purposes of an investigation and for general company knowledge. Employees that are using their own devices may be required to install software on their computer/phone to create data that the company can access and monitor without affecting the personal use of the device. Essentially, companies that require or permit employees to use their own devices, such as laptops and phones, should ensure that those devices are set up to contain and share work data through whatever channels the company chooses to use. Some companies may have a remote desktop or other portal that shares information, while others may require individuals to log in to online programs where documents and other information can be kept. Companies must make sure that the data that will become the cornerstone of an investigation for a remote worker is not lost.

Checking what Misconduct Took Place

Before a workplace investigation there is always an incident, complaint, or a supervisor/member of management that has questions concerning employee conduct. The misconduct for remote workers is not the same as for workers that are working in person with each other in close contact. Issues concerning remote workers may be harder to determine. Among the differing issues of misconduct for these workers are workers that are sending inappropriate messages over text or other channels, not completing work in a timely manner, taking confidential information/trade secrets, visiting inappropriate sites on company computers, and that’s just to name a few.

There are a number of issues that are important to consider when conducting a remote investigation. These principles apply both when the investigation is being conducted for workers that all work at the same site and the investigator is remote, or when all parties are remote.

Gathering Evidence

As with any investigation, the evidence is incredibly important. The evidence needed will depend dramatically on what company rule was violated. There are a number of questions that can be considered to help determine the best approach to gathering the evidence.

What rules were violated?
What means were used to violate the rules (computer programs, Slack channels, email, or other sources)?
Who else witnessed the event? Who had access to the materials?
Is the data saved somewhere that it will be preserved?
Are there any witness statements about the event? Any formal complaints concerning the event?
Is there any other information that will be useful?

Setting up Your Technology

Before getting into the heart of the important parts of the investigative process, investigators need to make sure that they have the right tech to conduct the investigation. Many companies will conduct investigations over the phone, which is ok but is not the most effective method.

As with everything else today, people are moving their investigations to Zoom, Microsoft Teams and other video conferencing services. To conduct an effective investigation through these services, companies must remember a few points.

● Use a dedicated room or channel that is private and only for this investigation.

● Make sure that you practice the technology to ensure that it will work properly on the day of the investigation

● Work with the various people you will interview to ensure that they have installed the software properly, are set up to use the software (have login information), know how to use the technology, are using the technology in a quiet place, and the other basics of conducting the investigation remotely.

● If employees do not have computers or are working onsite, then make sure that someone at the facility has set up the computer and will be present to help you manage the interview. They should not be in the room but need to be around in case of technology issues.

● If any documents or video will be shared through the software, then you should make sure to practice sharing this information.

● Remind the person being questioned to look at the camera (wherever that is on the device) so that you can get the best view of them to judge body language and whether they are being truthful.

● Make sure that the employee is not wearing a mask or other face covering so that you can view their expressions.

Ensuring Proper Interview Setup

During the interview, investigators should have another manager or member of HR with them to take notes so that the investigator can be focused on the conversation and their questions. The investigator should also ensure that the person that they are interviewing is alone and there is no one else in the room with them, which can be accomplished by asking them to use their camera to scan the room. If it is a unionized workplace, then the company must allow the employee their Weingarten Rights; the employee may have a union representative with them.

Interviews should be conducted as soon after the incident as possible to prevent the remote worker from deleting evidence or developing a reason that their behavior did not violate company policy. Obviously, companies still need to do some investigative work (see the above section on gathering evidence) before they are able to interview employees including reading witness statements, emails, text messages, slack channels, reviewing information from computers, and any other documentary evidence.

Evaluating Your Witnesses

The EEOC has some great information on how to determine whether a witness is reliable:

● Inherent plausibility: Is the testimony believable on its face? Does it make sense?
● Demeanor: Did the person seem to be telling the truth or lying?
● Motive to falsify: Did the person have a reason to lie?
● Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
● Past record: Did the alleged harasser have a history of similar behavior in the past?

Many of these factors remain the same when an investigation is remote. Inherent plausibility, motive to falsify, and past record are practically unchanged whether the employee is working remotely or if the investigator is remote.

However, determining an employee’s demeanor can be tricky during a remote investigation. The employee needs to make sure that they are looking at the camera so that the investigator can view their expressions carefully. The camera should be angled so that their face is captured and is not cut off. The investigator should encourage them to center themselves on the screen so that they do not go off the screen during the interview.

Corroboration is also something that changes in a remote investigation. It may be the case that the workers were remote, and you need to gather evidence regarding their behavior. In a remote working environment people are often alone. In an office environment, there may be additional witnesses to an event. Investigators need to carefully consider what information is available in the remote working environment and may need to involve IT to gather the evidence that is needed for the interview and the investigation.

Conclusion

Workplaces will need to continue to conduct remote investigations even after the pandemic ends. The future of work is changing dramatically. After COVID-19, it is likely that there will be more remote workers. By acting now and reviewing how to conduct a remote investigation, investigators will be better prepared to continue conducting these types of investigations in the future.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

2019-2020 Supreme Court Labor and Employment Cases

Published by Brett Holubeck on August 5, 2020

Image of a gavel to represent the Supreme Court's labor and employment decision from this term. — Photo by Tingey Injury Law Firm on Unsplash

This is one of the most impactful years that the Supreme Court has had on labor and employment law. The Court took on a number of important and controversial issues including gender identity and sexual orientation discrimination, the DACA program, the standard that must be met for proving age discrimination under the Age Discrimination in Employment Act and race discrimination under Section 1981, whether the ministerial exception applies to teachers at religious schools, and whether the government properly exempted religious institutions from the contraception mandate under the Affordable Health Care Act (Obamacare). The impacts and the follow-up cases clarifying the decisions from this term will continue to be felt for years, especially in the context of issues involving sexual orientation and gender identity discrimination.

Bostock v. Clayton County (Consolidated with Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission)

This was by far the biggest case to come out of the Supreme Court in employment law in years. The Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination against individuals based on their gender identity (transgender discrimination) and their sexual orientation. Essentially, employers cannot discriminate against employees on the basis of their sex, which includes gender identity and sexual orientation. Employers should update their handbooks to ensure that discrimination against individuals on the basis of sexual orientation and gender identity is prohibited. Employers should also retrain managers to ensure that employees do not suffer these types of prohibited discrimination. As a reminder, a number of states have their own laws on sexual orientation and gender identity discrimination. This ruling will not affect those state laws. Anyone with questions should first check the laws of their state to determine the best approach to resolving sexual orientation and gender identity discrimination issues.

Justice Alito’s dissent outlined the most controversial issues that will be decided by future cases (these are described below in each subheading). The biggest questions that remain from the case involve the interaction between the law’s prohibition against gender identity and sexual orientation discrimination and its protection of religious liberty.

“[B]athrooms, locker rooms, [and other things] of [that] kind”

When will an employee that is transitioning be permitted (or required) to use the locker room or bathroom associated with their gender identity? How does this right interact with the rights of other employees that may not feel comfortable sharing a bathroom or a locker room with an employee who has not had gender reassignment surgery? Courts will help resolve this issue. Many states have their own statutes (and subsequent cases) clarifying these protections. It remains to be seen how the rights will be protected/interpreted under Title VII, but one should expect the law to settle along similar lines as those in the various states (i.e. it is likely that employees will have the right to use the locker room or bathroom associated with their gender identity at some point in the future).

Women’s Sports

Whether transgender athletes can or are required to participate in the team that is in line with their gender identity. This is not an employment issue (except for paid female athletes), but it is a question that will need to be resolved based on the ruling. Many states are examining this question for sports including most recently Idaho. It is an issue that will likely continue to be litigated.

Healthcare

There are likely to be lawsuits by transgender employees that have employer sponsored health plans that do not cover the cost of gender reassignment surgery. Many of these plans will likely start to cover the surgery due to social pressure anyway, but it is an issue that still needs to be resolved.

Freedom of Speech

Employees don’t have “freedom of speech” in the workplace. Companies can fire employees for what they say as long as the firing would not be for an unlawful reason (speech that is protected under the National Labor Relations Act, whistleblowing protections of various statutes, or protected by another law). For example, a company could and should fire someone for making a death threat against another employee. A company cannot fire someone because they say that the company needs a union.

The dissent in the Bostock case stated that “the Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims.” The interaction of the decision with issues of religion and the protections that individuals have to practice their religion will undoubtedly be the most interesting.

Babb v. Wilkie

The Supreme Court ruled that under the ADEA (Age Discrimination in Employment Act) a plaintiff only needs to prove that age is a motivating factor in an employment decision for there to be a violation of the ADEA. However, but-for causation (but for their age the employee would not have suffered the adverse employment action) is important to determining the appropriate remedy for a violation of the ADEA. For example, a plaintiff cannot obtain some forms of relief, like hiring, reinstatement, backpay, and compensatory damages without a showing of but for causation. Plaintiffs could get injunctive or other forward-looking relief if they cannot show that age was a but-for cause of the employment decision but merely a motivating factor.

The decision will make it easier for plaintiffs to obtain relief under the ADEA as some forms of relief may be available even if they cannot meet the but-for causation standard.

Comcast Corp. v. National Association of African American-Owned Media

The Supreme Court unanimously ruled that under 42 U.S.C. § 1981 a plaintiff must show that race was the but-for cause of the plaintiff’s injury rather than a mere motivating factor (one factor among others that lead to the adverse employment action).

The case will make it easier for companies to defend against Section1981 claims, but employees that cannot meet the but for causation standard may be able to meet the motivating factor standard under Title VII and choose to file a charge with the EEOC or their respective state agency.

Department of Homeland Security v. Regents of the University of California

While this is not strictly an employment law case, it will have a big impact on employment.

As I said in a prior post, “DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program.”

In this case, the Supreme Court ruled that the Trump administration’s order to undo the Deferred Action for Childhood Arrivals was arbitrary and capricious (the administration did not conduct a thorough review of all the relevant factors that it should have taken into account such as any “legitimate reliance” that individuals had on the DACA memo, whether the government could have eliminated eligibility while continuing forbearance, and giving consideration to other policy alternatives). Instead, the Trump administration relied only on the illegality of providing the benefit by the prior administration as its reason for ending it.

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

This is one of the three major religious liberty cases that were before the Supreme Court this year. It may provide some insight into how the Court will view religious liberty issues in the future within an employment context, especially how they relate to sexual orientation and gender identity discrimination.

In a 7-2 decision, the Court concluded that:

As we have explained, RFRA [(Religious Freedom Restoration Act)] “provide[s] very broad protection for religious liberty.” Hobby Lobby, 573 U. S., at 693. In RFRA’s congressional findings, Congress stated that “governments should not substantially burden religious exercise,” a right described by RFRA as “unalienable.” 42 U. S. C. §§2000bb(a)(1), (3). To protect this right, Congress provided that the “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “it demonstrates that application of the burden . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.” §§2000bb–1(a)–(b). Placing Congress’ intent beyond dispute, RFRA specifies that it “applies to all Federal law, and the implementation of that law, whether statutory or otherwise.” §2000bb–3(a). RFRA also permits Congress to exclude statutes from RFRA’s protections. §2000bb–3(b).

The essence of the decision is that the government acted lawfully to expand the contraception exemption for employers like the Little Sisters of the Poor. Justices Alito and Gorsuch wished to go further and rule that the RFRA required the government to do so, but that issue was not necessarily ripe at the time. Of course, that will likely be one of the major cases before the Court in the future.

Our Lady of Guadalupe School v. Morrissey-Berru

In this case, the Supreme Court applied the ministerial exception to teachers at religious schools. The ministerial exception bars ministers from suing churches, synagogues, mosques, and religious institutions for employment discrimination. The Court, in a 7-2 decision, found that the school and religious institution meet the exception because the teachers are responsible for instructing the students in their faith. Whether the exception applies depends heavily on the beliefs of the particular faith and the employee’s role in teaching or developing it.

As a reminder, the ministerial exception grew out of the idea that religious institutions should be able to remove ministers without interference from the government. This makes sense for many reasons. For example, it would be weird, and unjust for a Lutheran church to be sued for discrimination because the pastor became a Buddhist and the church terminated his contract. The minister of a Lutheran church or the minister (or equivalent position) of any faith should obviously believe the teachings of that particular faith to hold that position.

Other issues and forms of discrimination are a little less clear (such as disability issues) but the Supreme Court determined that the employees subject to the ministerial exception do not have that protection. The reach of the exception will generally be limited as it only applies to people that teach the faith (i.e. are ministers). It is not going to be broadened to apply to those that work at religious institutions that are not tasked with ministerial duties (teaching the faith) such as janitors, administrators, and even those that work at many nonprofits that are owned by religious institutions (such as universities and hospitals).

Conclusion

This was a huge year for labor and employment decisions from the Supreme Court. The Court altered the impact of Title VII by finding that it protects individuals from discrimination based on their sexual orientation and gender identity. It also decided three cases regarding protections for religious beliefs (it found for the religious institutions in all three cases) including one case where the Court found that states cannot bar taxpayer aid to parochial and other religious run schools if they provide aid to nonreligious schools (essentially the Court found that states cannot discriminate against schools based on their religion). It seems inevitable that there will be a clash between religious protections and issues involving gender identity and sexual orientation. Courts will need to determine how these rights interact.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Basics of Onboarding an Employee

Published by Brett Holubeck on July 13, 2020

Picture of a life preserver with the phrase "Welcome Aboard" written on it to demonstrate that when onboarding employees should feel welcome. — Photo by Nick Fewings on Unsplash

Onboarding a new employee is tough. Onboarding a new employee remotely is even harder. There are several considerations that every company needs to have before they bring on a new employee especially in light of the current Coronavirus pandemic.

Make sure that the Paperwork is Completed

As I mentioned in an earlier post, employers still need to complete the I-9 for all new hires, but this rule has changed somewhat:

Every employee must fill out an I-9 when they are first hired. Employers normally cannot complete the I-9 form remotely. Companies must review the applicant/new hire’s documents in person. With COVID-19 (the Coronavirus) raging, this is one rule that has been relaxed. Remote workers no longer need to present documents physically. Companies can now view the documents through video and write COVID-19 as the reason for the delay in physical inspection on the relevant part of the I-9. They will need to review the documents physically once this disaster is over.

In another post, I listed some additional information on the paperwork that an employee needs to fill out on their first day. Rather than rehash that article, I want to use this post to discuss the actual onboarding process beyond merely filling out paperwork.

What is New Hire Orientation?

Onboarding is not new hire orientation. New hire orientation is essentially showing the new employee where they will sit/work, reviewing policies, and, let’s be honest, it is mostly filling out paperwork and watching training videos. It also involves telling them the basics of how to do their job.

Onboarding goes much deeper. It is about setting the employee up for long term success and to be a member of the team.

How to Onboard Employees Effectively

You need to have a plan. When I did Teach for America, one of the most important lessons that we were taught as teachers was to backwards plan. You needed to know where you wanted to end up, so that you could understand how to get there. For example, one of the goals may have been for the students to know their multiplication tables up to the number twelve. With that end in mind you can plan a series of lessons and tricks to help students memorize these tables so that they could do multiplication with bigger numbers later.

The same lesson applies to employees. A good job description can help you keep the end in mind (I wrote about job descriptions previously here). It is essentially what you want the employee to be able to do (i.e. where you want the employee to end up).

If a company doesn’t know what their end goals are for a new employee, then the new employee definitely won’t meet those goals. Onboarding starts on day one and continues for months until the employee is fully integrated into the company. Before getting into the details of improving onboarding at an organization, I want to briefly note that onboarding is a company and job specific process (or at least it should be). Ideally, there should be a different onboarding process for every type of job at the company because the purpose of onboarding is to make a new employee a good fit for their position and at the specific company they work for. Moreover, in the times of the coronavirus there are several additional considerations and training that employees will need.

Here is a quick overview of what the onboarding process may look like for employees generally.

The First Day of Onboarding

Companies need to communicate with the coworkers of the future employee to let them know that the company has hired a new employee. The team, or several members that the new employee will work with, should be encouraged to welcome the new employee when they first come into the office. In the coronavirus or “zoom era,” a quick zoom chat with everyone to welcome the new employee at the beginning of their first day is a great way to make the employee feel that they are a part of a team and the company is a good place to work. The same is true when the employee first comes into the office or onsite work environment. Gathering the fellow coworkers of the new employee to welcome them is a great way to immediately break the tension of starting the first day at a new job.

After the initial welcome, the new employee will likely have several trainings or meetings with their manager. Management should obviously give the new employee a schedule that they will follow on the first day; there is nothing worse than feeling lost on day one. The company should also assign a mentor or supervisor that will make sure that the employee finds his or her way to lunch, has people to eat with, and can answer any questions the new employee has throughout the day.

After the First Day

Once the new hire orientation is completed. The actual process of onboarding begins. This is where a good onboarding and a bad onboarding program can be differentiated. Many times, a company’s onboarding process is just a couple day new hire and training process without a long-term plan to integrate the employees into the overall team.

The only way to do that effectively is to map out the information that the employee will need to be successful in the workplace. In other words, you need an actual, formal onboarding program rather than an informal, haphazard one where employees learn what they need to do on the fly.

As I see it, there are a few key components of the formal, long-term onboarding process. One is integrating the employee into the company or business. It involves making them believe in the mission of the company and the aims of its business. The second is integrating the employee within the team that they work with. This involves them getting an understanding of the strengths of the team, the areas for improvement, how the team communicates and works together to complete its tasks, and just generally becoming comfortable and sociable with their coworkers. The final component of onboarding is orienting the employee into the basics of their job.

Let’s look at these three areas in a bit more detail.

1. Making the Employee Truly a Part of the Company

A new employee cannot integrate into a company’s culture in a week, but they do get a picture of what they believe the culture is. Within the first week the employee will have seen how different people interact with each other. He or she will see what issues his manager places their focus on and whether those issues come from the company or are something that the manager makes up on the fly.

Over the course of several months, if onboarding goes well, the employee will adapt to the culture of the company. If the company has a poor culture, then the employee will obviously try to work within that culture. A good culture or foundation is important for the new employee. A workplace culture is really what drives the employees at the company. Many companies have high morale because they care for employees and respect their ideas. Other companies have poor morale because of management or other problems at the company.

An employee learns about the culture of the workplace by watching and following what other employees are doing. If the workplace has a dog eat dog culture, then the employee will notice that the first time that they get stabbed in the back or when people do not share credit for some project or task. The new employee will likely adapt to whatever culture is already present in the workplace rather than changing it.

2. Becoming a Member of the Team

This is probably one of the most critical, but often overlooked elements of the onboarding process. The social interaction and getting comfortable with the team that an employee will work with is important. Companies can aid this process by doing a few basic things. They need to create opportunities for the team to interact with the new employee. Usually, this means taking the new employee out to lunch or having them sit with a certain assigned person in the lunchroom so that the employee can avoid that awkward moment of not knowing where to sit that may take some of us back to high school.

Good companies create opportunities for the person to feel a part of the team throughout their time at a company. That means that employees are encouraged to share ideas and feedback with each other. It also means that employees encourage each other and support each other in their work. A good manager, proper training, and feedback are necessary to create this culture.

3. Helping An Employee Adjust to Their Job

This is the reason that the employee is there: to do their job. A long onboarding process helps them become more effective and brings them up to speed quicker. There should be regular checks with the employee to see how they are doing. Ideally this would be done on a formal basis at one month, three months, six months, and a year. On an informal basis, management should check in with the employee on a multiple time a day basis during their first few days, then a daily basis through the one-month period, and perhaps weekly after that.

Every job has specific requirements. Companies need to conduct their own analysis to see what skills they need to develop within the new employee and what the employee needs to know in their specific job to be successful. Some jobs have only a few skills that a new employee needs to know, and these can usually be learned quickly. Other jobs have a variety of skills and tasks that need to be completed. Sometimes the job will even have tasks that will only occur once a year or sometimes once every other year (like planning a conference). A good employer will help employees understand what they need to do to complete these tasks and train them so that they can do them effectively.

Some Quick Notes about Remote Onboarding

With remote onboarding, companies need to be even more intentional than they are with employees that they see on a day-to-day or week-to-week basis. Managers must check in with their employees and their work to see how they are doing. Every coworker must aim to make the new employee feel welcome and part of the culture. There needs to be a specific plan and agenda in place to help the new employee integrate into the company. It needs to be thought out and time must be blocked off for the various parts of the first day. As I mentioned before, a quick zoom call at the beginning of the employee’s first day is a great way to make the employee feel welcome. Buying the remote employee lunch on their first day and having a lunch meeting over zoom is another way.

Throughout the first week the manager and other coworkers should check in with the employee. Employers need to create an intentional plan to interact with the employee so that they don’t feel like they are an outsider or completely isolated from the company. Companies can be successful in making remote employees fully part of the team and feel like they fit within the company. It just takes a lot of preparation and a plan.

Conclusion

Around one-third of employees leave a job within the first six months. The more a person is integrated into the company, their team, and their job the less likely it is that a person will leave. Remember, hiring is expensive. The cost of a bad hiring decision according to the Department of Labor is 30% of their first year earnings. Onboarding is an opportunity that employers have to help their employees and their business grow. It is too important to leave to chance or do without a well-developed plan.

The information provided is my own and does not reflect the opinion of my firm or anyone else.