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Category: COVID-19

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.

Top 10 Post COVID-19/Coronavirus Employment Law Issues

Published by Brett Holubeck on June 17, 2020
Image of a sign that says that "the world is temporarily closed" to demonstrate that most activities are shutdown until the post COVID-19 recovery begins.
Photo by Edwin Hooper on Unsplash

Businesses are slowly returning to normal from the COVID-19/Coronavirus pandemic. However, there are still a number of issues that are employers are facing. Of course, the most important issue for many employers is making sure that their business survives. Unfortunately, many businesses are also facing another issue: lawsuits. The potential liability for companies is continuing to accelerate. Here are the most likely lawsuits, administrative proceedings, and labor/employment law issues that employers will face in a post COVID-19 workplace.

1. WARN Act Lawsuits

As I stated in a previous article, the WARN Act generally requires employers with 100 or more employees to provide 60 days’ notice before the closure of a business or a mass layoff.

With the numerous layoffs that have occurred, accelerating bankruptcies, lockdowns continuing in many states, and businesses operating at reduced capacity or shutting down there will be a number of people that will not come back to work. Many people suspect that 40% of the layoffs will be permanent. 40 million people have lost their jobs. Unfortunately, the sheer number of layoffs means that there will be some layoffs that were not properly done. WARN Act lawsuits will accelerate.  

2. Worker Safety Lawsuits and OSHA Complaints

As I stated in my post about essential workers, employees want to be safe. Many are filing OSHA complaints and lawsuits because they do not feel safe.

a. OSHA Complaints Are Increasing

OSHA has issued over 5,000 complaints related to COVID-19. There will be a number of OSHA complaints that will continue after businesses begin to reopen. Many employees are concerned about their safety especially those that are vulnerable or work in high risk jobs. Companies should expect that there will continue to be a number of OSHA complaints due to companies not following all the safety protocols that OSHA and the CDC have put out. As a reminder here are the protocols from OSHA and the CDC have been released:

There are two important steps to employee safety and COVID-19. First companies need to follow the guidance to the extent that it applies at their workplace. Second, companies need to communicate with their employees about the safety steps. Employees need to know the procedures that they need to follow.  Employees also need to have channels that they can use to report workplace problems and safety concerns. Finally, employees that know that their company is taking steps so that they feel safe in the workplace are less likely to pursue lawsuits or complaints against a company.

b. Lawsuits About Personal Protective Equipment (PPE)

A number of employers have been sued for not providing enough personal protective equipment for employees including one against Smithfield  and another against a hospital.

The Smithfield plaintiffs’ suit was dismissed because they did not follow the proper channels for pursuing their claim (they should have gone through OSHA). While similar lawsuits are unlikely to succeed, companies should expect employees to continue to use all legal channels when they are not satisfied with the protective measures that their employer has taken.

3. Worker’s Compensation Lawsuits

Employers should expect a surge of worker’s compensation claims related to the coronavirus. It may be difficult for many employees to demonstrate that they got sick at work, but some states have made this easier through executive orders or other legislation that have basically enacted a rebuttable presumption that essential workers are presumed to have been infected while on the job. Bloomberg has a nice chart of which states have enacted such laws. For workers that are not essential or are not in one of the 8 states that have enacted such a law or regulation, it will be difficult to show that the employee actually got COVID-19 at work. This fact should reduce the number of successful claims in those states.

There continues to be conversations in Congress about protecting companies from liability, but nothing has passed yet.

4. NLRB Charges and Union Organizing

There are a number of signs that union organizing will increase as a result of COVID-19. Here are exhibits one, two, and three. Even nonprofit workers are turning to union organizing.

Union organizing and NLRB charges will continue to increase in the wake of COVID-19. Many unions have used the pandemic to strengthen their relationship with employees and seek to organize more employees. Many have been successful because employers have failed to take appropriate steps to protect employees or have not communicated with  employees about the steps that they have taken.

As a reminder, in some prior posts I wrote about what employers can and cannot do in a union organizing campaign and how to respond to an NLRB charge.

a. Employee Walkout Issues

There will continue to be employee walkouts because of the coronavirus. Stories about employees walking out because of concerns about safety are everywhere. As COVID-19 continues to cause problems and potentially a second wave of the Coronavirus comes, employers may see more walkout issues. This may especially be the case for workers that are more concerned about the virus because they are more susceptible to suffering from a severe reaction from it. Employers should remember that walkouts are likely protected under both the OSH Act (which may protect workers that refuse to perform a job if they are in imminent danger) and the National Labor Relations Act (which protects concerted protected activities by employees).

5. Employee Recall Lawsuits

As businesses reopen, there are a number of issues where employers could get into trouble. I wrote about employee recall issues recently. Specifically, I listed issues regarding the WARN Act, age discrimination, collective bargaining issues, and issues with the FFCRA once an employee is brought back. As businesses recall employees all of these issues, especially those related to discrimination, will become major concerns.

6. Refusal to Perform An Illegal Act

A Texas Supreme Court case called Sabine Pilot Service, Inc. v. Hauck states that an employer cannot fire an employee when they refuse to perform an illegal act.

In a recently filed case, an employee was required to come into the office to work. She claims that she was able to work from home and that the business was not an essential business and thus her employer was requiring to do an illegal act by requiring her to come to work. She claims that she was fired for refusing to come to work, which would have violated the stay at home order.

As businesses continue to reopen and restrictions continue to be placed on businesses, it may be the case that there will be additional lawsuits like this one.

7. FFCRA and Expanded Family and Medical Leave Lawsuits

When employees are finally able to resume working and meet with attorneys, it is likely that some of them will have potential claims against their employer for failing to follow the Families First Coronavirus Response Act (FFCRA). There may have been a number of people that have not been able to work because of childcare issues, their own illnesses, and being denied leave for other reasons (some of which may be legitimate). At least one employer has already been sued. Many companies will face similar lawsuits.  

8. Disability Discrimination Lawsuits

As I mentioned previously, employers have obligations to accommodate individuals based on a disability. As companies open up, it is likely that many people that may be more vulnerable to COVID-19 will seek accommodations from their employer. The most common accommodations include remote work or additional leave. The way that employers respond to these employee requests for a reasonable accomodation will be critical to avoiding potential lawsuits.

9. Employee Layoff Issues and Lawsuits

The sheer number of employees that have lost their jobs (more than 40 million) leaves a lot of room for lawsuits that typically follow a layoff. Excluding lawsuits related to WARN, here are some of the common issues that follow a layoff.

a. COBRA Notice Lawsuits

I wrote about COBRA notice problems in a recent post. There will be more COBRA lawsuits due to the difficulty that many companies have in providing appropriate notice to employees of their loss in health insurance coverage.

b. Non-Compete and Trade Secret Litigation

As people leave companies because of layoffs many will try to start their own companies or will be hired by competitors of their former employer. Some of these employees will inadvertently or purposefully try to take clients or trade secrets of their former employer. Companies should be careful when laying off workers that they eliminate employee access to various accounts and that no information is taken. Companies would do well to consider a severance agreement for employees with any confidential information to make sure that they return all confidential information and understand their responsibilities.

c. Failure to Pay Employees Properly

At least one company has been sued for failing to pay employees after the business was forced to shutdown due to COVID-19 and the employer lacked the funds to pay employees for their most recent work. It is likely that a number of wage and hour lawsuits will occur after the pandemic ends. Many employees were working remotely at time when many companies did not have many remote employees and may not have had the framework in place to track working time for these employees. The failure to correctly track time worked is likely to be a big concern for all companies that had hourly employees that were working remotely.

10. Remote Work Increases

Remote work is going to increase after the pandemic ends. Approximately 66% of workers were working remotely at the height of the coronavirus. This is compared to the approximately 5 million workers (or 3.6% of the workforce) that were working at home at least half the time in 2018. One survey from Gartner of CFO’s found that 74% of the surveyed CFO’s believed that 5% of their workforce would be permanently converted from office to remote employees after the pandemic ends. With as easy as it is to work from anywhere for office employees one should expect this trend to continue to accelerate.

Conclusion

Life after the pandemic will be very different than it was before. People are much more concerned about safety.  Travel is down and will stay that way for the foreseeable future. Some countries are discussing reducing globalization and diversifying their supply chains. In other words, the pandemic and the governments’ reaction to it are a major black swan event.

Companies need to be aware of the above issues in the immediate future as they navigate a post COVID-19 pandemic workplace. The only way for companies to grow after COVID-19 is for companies to adapt and seek ways to improve. Companies need to plan for the above problems and work with employees to succeed. With a recession already underway and uncertainty about how long it will take the economy to recover, planning is critical to the future success of companies.

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.                                                                                                                                                                                   

How to Reopen a Business and Recall Employees

Published by Brett Holubeck on April 24, 2020
Image of a shop sign with the words "Yes, we are open" to show that the store reopened.
Photo by Artem Beliaikin on Unsplash

With COVID-19 still raging through the country and unemployment projected to hit 32% and affect 47 million people, recalling employees may seem to be one of the last things on employees’ minds right now. However, it is something that all companies need to seriously be concerned about.

Moreover, with President Trump’s plan to reopen the economy and Governor Abbott’s plan to reopen Texas it is something that all Texas employers need to start to consider. Governor Abbott stated that retail stores will be able to open under a retail-to-go plan on April 24, certain “nonessential” surgeries will be able to be performed, and state parks were opened on April 20. There will be additional announcements on April 27 and later as the plan to reopen Texas develops.

 So, what should companies do when they reopen?

Issues that Companies Face When Reopening and Recalling Employees

There are a number of issues that employers face when they are trying to reopen. If you read my COVID-19 article, article on protecting essential workers, or the WARN article, then you understand some of the issues that companies must consider when they reopen and recall employees.

Here are some additional issues to consider:

Avoiding WARN Act Issues

If you temporarily laid off your employees and intended to bring them back (I hope you listed an intended date of return on your notice to them if WARN applied), then you need and ought to take certain steps. The most important step is recalling employees to ensure that you do not meet one of the thresholds where WARN would have been triggered. As a reminder, the DOL states that

[a] covered mass layoff occurs when 50 to 499 employees are affected during any 30-day period at a single employment site (or for certain multiple related layoffs, during a 90-day period), if these employees represent at least 33 percent of the employer’s workforce where the layoff will occur, and the layoff results in an employment loss for more than six months. If the layoff affects 500 or more workers, the 33 percent rule does not apply.

If you laid off employees temporarily and want to bring them back, you must be extremely careful and act quickly.

Keeping in Contact with Laid Off Employees

You should be in contact with your employees. Now is a time to show them that you actually care about them. If you had a temporary layoff or are now recalling employees that were permanently laid off, then you should do things that actually demonstrate that you meant you would like to bring them back and show that you care so that you get the employees back when that time comes.

Some simple things that you can do to show that you care and keep in contact is to:

  1. Update the contact information (phone numbers, email addresses, and mailing addresses) for all employees
  2. If you gave a date when you expected the closure to last until then consider reminding employees and checking in before that date to inform them of what they will need to do to return to work and whether the opening will proceed on that date.
  3. Write and send letters of recommendation for former employees if they are applying for jobs.
  4. Do not contest unemployment and consider filing for mass unemployment while they are not working for you.
  5. When you contact employees you need to ask how they are doing. They are human. They are going through a lot. Businesses that show that they care about their employees are more likely to succeed.

Recalling Employees

Companies need to follow their protocols to recall employees.

If a company will rehire employees that were previously laid off or recall employees that were furloughed, then the most important thing a company needs is some form of objective criteria to determine which employees they will recall if they do not recall everyone. Typically, employers would first look at their employee handbook to see whether it outlines any return to work policy. Unionized companies must follow their collective bargaining agreement. If there is no policy in place, then employers should attempt to develop a policy that they will follow.

What criteria should you consider  before you bring employees back when you are not bringing everyone back?

  1. What jobs need to be brought back? Are there any jobs that do not need to be brought back?
  2. Will any employees need to come back before other employees? For example, some machinery may require maintenance before it is able to operate again. You may need to recall your maintenance staff first so that they can get any machinery that has been turned off up and running again.
  3. What skills do you need? Some employees may have cross-trained and be able to fill in other roles which could be important if less employees come back to work.
  4. Will you use past evaluations to determine what employees should not be brought back in the same job? How will you measure performance?
  5. Are you going to use seniority?
  6. Are there any employees that you are not going to bring back? You should document why you are not bringing back certain employees.

The most important thing to do is to document the reasons that you are bringing back certain employees. While this may seem like an easy task, how you conduct a recall will have major implications on potential discrimination claims and morale issues, and potentially WARN Act issues if you fail to recall enough workers.

Special Recall Rules for Employers with Collective Bargaining Agreements

If you have a collective bargaining agreement, then you must follow the requirements within it to recall employees. Typically, a collective bargaining agreement requires that employers recall employees by seniority in each position. If everyone is not recalled, then there may be obligations to bargain with the union.

Age Discrimination Issues

Companies need to carefully review who they plan to recall and review whether any disparate impact occurs on employees. Sometimes companies choose to use salary as a factor for returning employees. This can cause a situation where the oldest employees, typically those that have worked for a company the longest and thus have the highest salary, are not recalled because the company is trying to save money. Companies must be careful to justify the reasons that they are bringing back certain employees and not others. This kind of situation could cause an age discrimination claim.

Families First Coronavirus Response Act Issues

Any employee that is recalled will be immediately eligible to take sick leave under the FFCRA. Employees are not eligible for expanded family leave until they have been an employee of the company and on the payroll for at least 30 days. Any recalled employee will be eligible to take sick leave under the FFCRA right away and the company will need to front the money to pay for it. This may be especially difficult for companies that have been closed for more than a month.

Preparing to Reopen Your Business

There are a ton of considerations before any business reopens. A lot of it is specific to the particular business. One issue is employee safety. Lear, a Fortune 500 company that produces automotive seating and automotive electrical systems, has put together a great guide that can help companies that are preparing to reopen their business.

There are a number of factors to consider when a business reopens:

  1. Is there enough work? Can your business reopen, or should you file bankruptcy?
  2. How much work is there? Does your business need to bring back only certain parts of the business that are likely to be the most profitable? Will you cut other parts of the business?
  3. Are supply chains up and running and able to provide the business with the resources that you need to make your product or operate your business?
  4. Are your customers operating? Is there a market for your product or business? Does the business need to wait for customers to reopen first?
  5. Have you been keeping in touch with your employees as described above to ensure that you will be adequately staffed when you reopen? Some employees may not wish to come back especially if they are collecting more on unemployment. It is entirely possible that you may need to hire new/additional employees.
  6. Have you updated your procedures and practices before you plan to reopen? Have you reviewed all the guidance from OSHA and the CDC that apply to your business? Implementing them to the extent possible at a business is critical to protect employees and avoid potential claims against the business for failing to provide a safe working environment, worker’s compensation claims if employees fall ill, and premise liability claims from customers that get sick?
  7. Will you train your supervisors and cleaning staff to follow guidelines from OSHA and the CDC to ensure that cleaning is properly done? Have you identified areas that will need to be more frequently cleaned? Have you instituted new policies to space out employees in hallways, lunchrooms, and their workstations as is possible in your business? Will you institute staggered lunches?
  8. Have you updated your handbook to include policies related to leave under the FFCRA?
  9. Have you obtained the necessary safety supplies to clean areas and protect your employees including infrared (no contact) thermometers, masks, gloves, and additional cleaning supplies? Will you be using temperature checks when employees enter the facility?
  10. Have you trained supervisors to handle employee accommodation requests? For example, an employee with a heart condition may have a disability that needs to be accommodated. Are supervisors prepared to address any disability accommodation requests related to the coronavirus?
  11. Do you have a plan in place to let employees know all of the extra steps that you are taking to protect them and to receive feedback on any safety concerns? Are you posting flyers related to the steps that you have taken? Again, Lear has provided flyers that can be used.

These suggestions barely begin to scratch the surface of issues that businesses must consider to reopen. Every business is unique, and it is likely beneficial for businesses to seek outside guidance about their specific business as they prepare to reopen and recall employees.

Conclusion

With an over 20% “real” unemployment rate, many people in the country are suffering. This is not going to end soon. A lot of capital has been lost, supply chains have been destroyed, and the economy has changed forever. The more preparation businesses do to reopen, the more likely they will be successful in doing so.

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.                                                                                                                                                                                   

Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.