Employer Liability In The Nontraditional Workplace
The COVID-19 lockdown forced both employers and employees to rethink the way we work. Companies that wanted to survive the pandemic found ways to use technology and digital tools that allowed people to work from home. More than half of those people want to continue doing so—at least a few days per week. The statistics should be considered by all employers, especially those that expect to operate as they did pre-pandemic. The “new normal” is anything but in corporate America.
Regardless of where employees work, Title VII of the Civil Rights Act protects them from workplace harassment as defined by the Equal Employment Opportunity Commission (EEOC). In a recent article, Foley & Lardner attorney Katharine Beattie addresses how employers can comply with the standards when the workplace is no longer defined by the four walls of the office. In this post we take a look at Beattie’s insights, review a few related cases, and offer guidance for mitigating liability risk.
Where’s the workplace?
That is the question, right? Well, partially. As Beattie notes, different courts and legislatures vary in their interpretation of how far the workplace extends in relation to employer liability. Massachusetts, for example, has a broad policy that attaches liability to most cases of employee conduct that are linked to the workplace in any way. Location matters less than whether the incident falls within Massachusetts Commission Against Discrimination (MCAD) guidelines.
“Where” is more important when fully remote workers are not in the same state as their employer. A recent New Jersey case explored whether an employee working in New Hampshire for a New Jersey-based company was protected by the New Jersey Law Against Discrimination (NJLAD). The opinion of the New Jersey District Court, expected to be upheld by the New Jersey Supreme Court, was hat NJLAD indeed covers out-of-state employees.
Employment attorney Katie Lipp provides an overview of other states’ approaches to employment law for remote workers in an article for the Lipp Law Firm blog.
Recommendations for employers
The steps employers should take to protect themselves from liability in the remote workplace are the same as they are for any employment law-related situation.
Review and maintain written employee policies. Be clear that all employees, regardless of location, are required to comply.
Train employees and managers. Reinforce written policy with classes that address workplace environment, conduct both in person and online, and the consequences of inappropriate behavior.
Investigate employee complaints regardless of workplace location. Address the issue quickly, just as you would a complaint in your building. This is not only good policy, but also tells employees that company standards apply to every worker equally.
Navigating your company’s future beyond the pandemic is not simple. A trusted employment attorney can bring understanding to the process along with assurance that your company will comply with evolving workplace law along the way. We are, of course, happy to help.