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Workplace Harassment and Investigations in the Virtual Environment

Employers can be liable for harassing conduct even if it occurs outside the physical workplace. It can happen digitally in social media posts, or even in the perceived safety of an employee’s home. Amid the COVID-19 pandemic, employees who still have jobs may be worried about job security and be reluctant to report inappropriate behavior. Many employees report working from home has resulted in a blurring of work hours versus non-work hours, creating an increased risk of inappropriate interaction. In-person, a worker may know not to make a racial joke or pass around nude pictures in the workplace, but the lines between what is and isn’t okay tend to blur online. Management may not be aware of inappropriate conduct due to physical separation from employees and the inability to observe and assess signs of harassment.

Several months ago, in response to the pandemic, many employers pivoted to work from home for the first time. The pandemic may have elevated safety, staffing, and other immediate concerns above harassment. Still, harassers haven’t changed their ways, and employers’ obligation to shield workers from mistreatment based on their sex, race and other protected characteristics has not lessened.

Review Your Current Harassment Policy

All employers must have a robust and comprehensive anti-harassment policy. Further, recent tragic events concerning violence against people of color underscore an urgency for employers to provided heightened support and response to discrimination and unfair treatment based on race. A comprehensive employer harassment policy should contain a clear statement that the prohibitions apply not only to spoken or written words but also to e-mail, text messages, and social media posts that may be seen by employees, customers, vendors, etc. It should also include a statement that the policy applies not only in the workplace but also at company-sponsored business and social events or events with co-workers in attendance that is entirely unrelated to the workplace. This language in a harassment policy is even more critical now that the workplace includes the employee’s home. It is time to review harassment policies to ensure they cover conduct outside of the physical workplace and in the digital forum. Along with the statements above, consider adding language that specifically addresses inappropriate conduct during a work video call.

Train Managers to Look for Signs of Harassment

Managers must receive training and guidance on spotting behavior that may indicate harassment or violation of company policy. Not all harassment complaints come to management by way of a direct report. While employees are working remotely, pay attention to the following signs of potential harassment, including:  

  • An employee who becomes quieter or withdrawn on Zoom
  • Employee’s reluctance to turn on video during a call
  • Inappropriate dress by employees during a video call
  • Offensive photos, signs or décor in an employee’s workspace displayed on a video call

Managers must sharpen their sixth sense and be hyper-aware of these and other employee interactions that could be a sign of unreported harassment or inappropriate conduct.

Prevent Harassment from Third Parties

Employers’ legal obligations to prevent harassment extends to harassment perpetrated by third parties such as vendors or customers. During the pandemic, the hijacking of video conferencing, called “Zoom Bombing,” by unknown third parties, has become so prevalent that the FBI has issued warnings against the activity. Employers have a duty to prevent unwanted sexual imagery or racial slurs while using technology to host meetings. Best practices include: 

  • Avoid publicly sharing of a Personal Meeting ID (the number users need to find your Zoom call)
  • Use a Waiting Room to screen who can come into the meeting room
  • Require users to log in with a password
  • Disable custom backgrounds that allow users to show images as a backdrop
  • Prevent participants from sharing their screen
  • Mute participants upon entry, or when they become disruptive
  • Turn off file transfers and annotations
  • Disable private chat
  • Remove disruptive participants

If an unwanted third party disrupts a work call, be prepared to follow up with all impacted employees, and communicate steps taken to prevent harassing disruptions from occurring again. Follow up with legal counsel and consider reporting conduct to the authorities.

Investigate Complaints

During the pandemic, employers still have a legal duty to investigate harassment complaints promptly. Remote working and social distancing requirements do not eliminate the investigation requirement but do pose unique challenges for investigators. While certainly not preferable to in-person interviews, in comparison to purely telephonic interviews, videoconferencing allows investigators to assess the witness’s credibility better and to share documents with the witness for questioning. It may be easier to assess credibility by using video conferencing now, instead of in-person interviews where masks cover a witnesses’ facial expressions. If an employer has a good protocol already for doing a harassment investigation, they should follow those protocols, even remotely, to the best of their ability.  Don’t delay an investigation during the pandemic but consider these additional suggestions to ensure it’s done to the highest pre-pandemic standard:

  • Ensure that the videoconferencing software does not allow for unilateral recording. A witness may also need to be advised not to record the interview in any form.
  • Investigators should be thoughtful about how to use and ask witnesses about, documents during interviews
  • It can be more difficult to assess a worker’s credibility remotely than in person, where an investigator can carefully watch a witness’ body language. Additionally, if someone has a cultural background that predisposes them to avoid eye contact, that may be more easily mistaken as dishonesty over a video interview.
  • The witness may use the limitations of remoteness as an advantage. For example, a witness could drop the video or teleconference or feign technological issues as a tactic during the interview to avoid responding to a difficult question. A witness could also communicate with other parties during the interview in an effort to “get their stories straight.”
  • Before the interview, the investigators should consider establishing an alternative means of communication if the preferred method suffers from technological issues. A trial run-through is also advisable to address technological obstacles.

Training

Anti-harassment training may be the last thing on employers’ minds during the pandemic, especially if they don’t operate in any of the several states mandating training. However, while working remotely, employers may see an opportunity to use this time by holding online training sessions to take proactive prevention steps. Currently, we are offering Workplace Harassment Awareness Training through virtual instructor-led classes or on-demand classes.

For those in charge of conducting investigations for their organization, we offer the virtual instructor-led class Conducting Effective Internal Investigations. This ½ day class teaches participants how to conduct witness interviews, appropriately document the investigation, assess witness credibility, and prepare an investigation report. It also covers the legal rights of investigation participants and recommendations for post-investigation follow-up. Our next session is August 26.

Eligible Archbright members are encouraged to contact the HR Hotline regarding policy updates and advice on the appropriate response to harassment in the physical and remote workplace. Since the pandemic began, Archbright has enhanced its investigation services to allow for compliant and effective remote investigations and offers online investigation services.

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Kellis Borek

Kellis Borek is the Vice President of Labor & Employment Services and General Counsel for Archbright. She oversees the legal work of Archbright’s team of attorneys who provide advice and counsel regarding all aspects of employment and labor law to employers in Washington, Idaho, and Oregon. Kellis serves on the Leadership Team at Archbright supporting corporate strategy and compliance. Kellis is an expert in labor and collective bargaining and has a history of providing labor and employment advice to Archbright members. When the opportunity arises, Kellis still provides legal support to Archbright members. Kellis is a thought leader for Archbright; she speaks at events and leads a team that creates all educational and compliance content for Archbright. Kellis has practiced employment and labor law for over 25 years. She is licensed to practice in Washington and Idaho. Kellis earned her B.A. from Washington State University and her J.D. from Seattle University. When not working, she spends time with family, friends, cooking, and traveling.