Top Three Legal Risks to Employers in the New Teleworking Norm

Top Three Legal Risks to Employers in the New Teleworking Norm

By Christina M. Reger, Esq. and Tatiana Cook

Virtual meetings are the norm in this COVID-19 era. Platforms like Zoom, Skype, and Microsoft Teams are the “go-to” resources for employees and employers to meet and collaborate. But with this new and prevalent technology comes some legal risk. Those risks give employers even more of a reason to update their handbooks this upcoming year.

 Discrimination Through the Lens:

 Virtual meetings give everyone an inside peek at a person’s home. But, what is in a person’s house often exposes personal information as well. Employers should ensure that their anti-discrimination policies are up to par. Since discrimination claims arise with discrimination of a protected characteristic (race, color, religion, age, national origin, sex, gender), everyday objects in the background like a Pride flag or a cross could provide information about that person’s protected characteristic. Statements or actions regarding this protected characteristic that adversely reflects the employee’s status as an employee can be a basis for a discrimination suit.

 Sexual Misconduct and Harassment:

 Virtual meetings might make people a little too comfortable. This fall, writer Jeffrey Toobin was recently fired from the New Yorker after exposing himself on Zoom to his co-workers. But not all actions are quite that shocking. Just in my own experience, I have seen marital spats while waiting for the zoom call to start (“oops I thought I was on mute”), and the ever popular spouse that walked behind the zoom camera in his towel after a shower. Lewd and obscene acts are a cause for concern on Zoom, but that concern doesn’t stop there. Displaying, sending, or sharing vulgar pictures or pornography could lead to a claim of sexual harassment. Employers should have a policy about appropriate zoom etiquette.

 Friday Happy Hours:

 It’s likely that the remote environment encourages employers to want to make their teams feel like a team. Some Friday night activities might include virtual Bingo or Family Feud. But, with a virtual party may come some alcohol consumption. Encouraging employees to grab a drink to celebrate is okay. Still, it’s employers’ best interest to make sure that they are not promoting their employees to binge drink, leading to harassing or embarrassing behavior.

 To address all of these concerns, an employer can minimize risks by amending their employment handbooks and policies to set the tone for specific behavior. Policies can include a dress-code policy for Zoom meetings, prohibiting alcohol consumption or limiting alcohol consumption to virtual events, and readdressing any changes to both federal and state anti-discrimination laws.

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