In Episode 72 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank, and employment law expert Jennifer Shaw discuss important takeaways when conducting workplace harassment investigations while employees are working remotely.
Even when employees are working remotely, instances of sexual harassment may still arise.
Whether it’s displaying explicit content in the background of a video conference call, or accidental displays of nudity or inappropriate attire, the relaxed atmosphere of being at home is pushing the boundaries of what constitutes being “at work.”
“…People are forgetting that it’s still the workplace,” Shaw tells Frank.
When instances of harassment arise, some employers may erroneously think they can postpone conducting investigations due to the COVID-19 pandemic crisis, but Shaw cautions that the crisis is not a valid excuse.
Human resources professionals are particularly swamped with work at the moment, as they have to juggle the needs of remote employees and following Families First leave laws, Shaw explains.
Nevertheless, employers still have the legal obligation to conduct prompt workplace investigations of harassment, she emphasizes.
Moreover, just because employees are working remotely, it doesn’t mean an investigation can’t happen. Virtual conferencing platforms, such as Zoom, are an option for conducting remote interviews, Shaw says.
If conducting an investigation interview over a virtual conferencing platform, it may be tempting to utilize the recording feature of the software. However, Shaw reminds podcast listeners that in California both parties must consent to being recorded.
Frank points out that some virtual conferencing software automatically records the conference, and the employer must manually turn the feature off. She cautions that employers must be careful not to inadvertently record employees.
If an employer is thinking about recording investigations, Shaw encourages the employer to really think about what the benefit is of recording the interview. While the employee is being recorded, the employer also is being recorded, and that can be problematic, she says.
Review Policy, Procedures
The last takeaway Shaw provides is for employers to use this time to really think over their harassment investigation processes and policy. Are there tweaks that need to be made?
“One of the things that I really want folks to think about is what do you do in your regular investigation process and then let’s think about how that applies outside of the regular investigation,” Shaw says.
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