Category: Remote Work

2021 Labor and Employment Predictions

Published by Brett Holubeck on February 4, 2021

Picture of 2021 made from masks to represent my new labor and employment law predictions, which will revolve around COVID. — Photo by Ibrahim Boran on Unsplash

It is a new year! Will this be a year when we overcome our struggles and defeat the coronavirus? Will we be living in some sort of Groundhog Day where 2021 looks a lot like 2020? Will it be a mixture of both? Unfortunately, Dr. Fauci said at the end of last year that we are probably looking at the end of spring to early fall for returning to normal I believe that the timeline could be expanded further.

With that being said, here are my labor and employment predictions for 2021. One quick note, I am not including anything about the labor and employment law legislative agenda of the Biden administration in this post. It will be part of a separate post.

The Supreme Court Will Rule on the NCAA and Potential Antitrust Violations and Will End Special Access that Unions have to Agricultural Employees

There are two different Supreme Court cases that may impact labor and employment law next year (at least so far).

The first is:

National Collegiate Athletic Association v. Alston

This case concerns “whether the National Collegiate Athletic Association (NCAA)’s prohibition on compensation for college athletes violates federal antitrust laws.” Yes, technically this is an antitrust case and not a labor and employment case. It is not clear how the Court will rule, but this will be a big decision as it could eventually result in student athletes being paid after subsequent litigation concerning the Fair Labor Standards Act and/or receiving some portion of the money earned from their likeness. I believe Roberts and Gorsuch will be the most important justices in the case. There is a good overview of Gorsuch’s antitrust views here. I believe it will be a 5-4 or 6-3 decision. I’m inclined to believe that the Court will find an antitrust violation, but I would not be surprised if the decision went the other way.

The second case is:

Cedar Point Nursery v. Hassid

The question presented is “whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.” That does not sound like a labor law case at first blush, but it actually deals with a union’s right to enter the property of agricultural employers in California. Essentially, unions are allowed access to the property of agricultural employers for up to three hours a day for 120 days a year. In most nonunionized workplaces, union organizers are not allowed on the private property of the company (as long as the company is consistent and does not allow other solicitors on their property). I believe that the Court will find that this is a taking and will no longer permit the union to have special access, especially since technology has made organizing employees much easier.

Immigration Will Become Easier for Employment-Based Immigrants

Fairness for High-Skilled Immigrants Act of 2019

The new administration is probably one of the best chances for the US to eliminate the country cap limit for green cards. The cap limit has caused immigrants of Indian origin to wait a decade or more for their green cards and has caused years long delays for Chinese immigrants and others as well. Removing it is a good step toward ensuring that all immigrants are treated fairly and is likely to happen in the new administration.

The Percentage Denial for Various Employment Visas Will Go Down.

The number of employment visa denials has been especially high under the Trump administration (See information about H-1B visas here). The Biden administration will increase visa approvals.

ICE raids are over and Notices of Inspection Will Decrease.

The number of ICE raids and Notices of Inspection (I-9 audits) under the Trump administration will likely decrease under the Biden administration.

You can read more about ICE raids here and Notices of Inspection here.

Pathway to Status and Citizenship

There will also be an attempt to form a pathway to citizenship and some form of protected status for a number of undocumented or unauthorized immigrants (See Biden’s plan here).

Remote Work Will Continue to Grow

This one is definitely cheating. It feels a bit like predicting who won the Super Bowl last year. However, the world changed so much over this past year that this needs to be addressed. Remote work is here to stay. You can read more about addressing the employment law issues associated with remote work in my previous article.

What are going to be the long term effects of this from a labor and employment law perspective:

● An increased need to protect trade secrets and other data

● Better management systems for employees that may not be seen every day

● More worker’s comp claims from injuries that occur at home

● Issues with tracking employee time from home for hourly employees and those that are not exempt from overtime (see more about the overtime exemptions here).

● More lawsuits and claims revolving around reimbursing employees for equipment

● Issues with completing the I-9 and other paperwork in a remote setting. Eventually, ICE will no longer permit I-9’s to be done remotely. You can read more about the paperwork that must be completed to hire new employees here.

● Issues with following local laws, safety regulations, restrictions on working from home, proper tax withholding for localities and a number of other issues based on the local laws.

States are fighting over the taxes of remote employees and companies are considering paying employees different amounts based on where they live. These disputes will be amplified this year as millions of people have moved as a result of the pandemic.

COVID-19 Issues will Dominate 2021

Vaccine Accommodations Will be a Major Issue for Employers

There will be a lot of people that do not want to take the Covid-19 vaccine. A Pew Research poll found that 60% of people would definitely or probably take the vaccine if it were available, which is up from 51% in September. Dr. Fauci estimates that 75% to 85% of the population need to get the vaccine to stop the spread of the virus.

There are going to be a lot of workplaces wondering whether you can require vaccines. The EEOC has already answered this question. Yes, you can, subject to accommodations for employees based on a disability or religion (I would also add that you should accommodate pregnant or nursing mothers as well).

Companies will deal with a number of requests for an accommodation based on disability or religion. You can read my past post on accommodations for disabilities here.

Some of these requests will be easy to accommodate. For example, Catholics are advised to avoid the AstraZeneca vaccine due to its closer link to human cell tissue taken from abortion than other vaccine alternatives such as the Pfizer and Moderna vaccines. A Catholic may receive the AstraZeneca vaccine if no other vaccine is available. Many companies offering vaccines may wish to provide an alternative to the AstraZeneca vaccine for Catholics if possible.

For many Muslims, the use of pork gelatin in other (non-COVID) vaccines may create a concern that the COVID-19 vaccine is not halal. Newsweek has looked into the claim of whether the Pfizer vaccine is not halal and found those claims to be false. However, this may be something that Muslim employees have concerns about and companies should accommodate those employees that have concerns.

Many employees with disabilities will not be able to take the vaccine or a certain vaccine. Employers will need to work with these individuals to determine the appropriate accommodation. Some employees may be able to work from home until a combination of vaccinations and herd immunity is reached. Others may need to wear masks and other PPE throughout this process.

More Local Safety Rules Will Be Enacted

I suspect that more states will enact local safety rules as the pandemic continues to unfold. We can also expect OSHA to conduct more inspections and issue new regulations.

Some Form of COVID Regulations Will Persist When the Pandemic Ends

Many states that have adopted standards around workplace safety or have hired a number of people to conduct safety inspections and ensure compliance with virus-related guidance will continue to have these individuals work for the government and enforce similar or other rules as the pandemic winds down and ends. There will be increased enforcement of state and local laws and many more lawsuits around those issues moving forward.

The Economy Will Grow in Importance

The economy is going to have a profound impact on a wide variety of circumstances involving labor and employment law this year and into the future. There are a number of interesting factors that will impact everyone this year.

We have not been in a major recession since the Great Recession, which lasted one and a half years and ended in June 2009. While we are not technically in a recession, we are close to a record number of people who are out of work, and we seem to be on the cusp of a downturn as businesses continue to struggle.
According to the Economic Policy Institute, 25.7 million workers in the US remain officially unemployed, out of work as a result of the pandemic, or have had a reduction in their hours or pay.
The recovery may be uneven and it seems that blue states may even be suffering a harsher recession than red states. There will be some kind of uneven recovery as there normally is with all recessions. This may cause long term changes in employment in the various states and may spark a new debate about spending, the effect of lockdowns, and increased regulations. The work from home revolution may also cause long term shifts in populations from states with a high cost of living like New York and California to lower cost of living states like Texas and Florida.
Globalization and deglobalization. One unique shared trait between Donald Trump and Joe Biden is their “Buy American” agenda. We will continue to see the new administration push for supporting American companies and a decreased emphasis on free trade.
There will be more stimulus. There is already talk of a $1.9 trillion bailout We will see how this plays out, but it is practically certain that it will have dramatic impacts on COVID’s effect on the economy.

Mental Health Issues Will Continue to Grow

I know that this is a repeat (and I’m breaking my rules by repeating a prediction from last year) but this is worth mentioning again. We are truly entering a mental health crisis. I went over this in detail in my last post reviewing my predictions from last year , but the crisis is going to continue. What does that mean for the workplace and labor and employment law?

There will be increased requests for accommodation due to disabilities associated with mental health. There will be less productivity. There will be more stress and tension in the workplace. More employees will take time off to recover and try to handle their stress. There will be an increased need for therapy and other treatment. There will be more drug and alcohol abuse.

Employers should do all that they can to help employees recover and to treat their mental health conditions. The employers that do this will see better productivity and morale from their employees.

Let’s also hope that this past year and the length of this crisis encourages everyone better to understand the struggles of people that deal with mental health just a bit more. Hopefully, the stigma of having a mental health issue is less in 2021 than it was in 2020 and that workplaces will do their best to support people with mental health issues.

Conclusion

There will be a ton of changes this year as a result of the pandemic and a change in administration. Employers will need to continue to adapt.

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.

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