Employers embracing remote work, either exclusively or on a hybrid basis, should review and update their employment policies and trainings to ensure employees understand what virtual forms of harassment and other inappropriate conduct look like—and how they need to adapt their conduct and appearance to virtual workspaces.
“Everything old is new again” is an apt truism when it comes to the area of employment law these days. Employment policies, such as anti-discrimination/harassment and codes of employee conduct, are receiving new attention as employees continue working remotely through shared online workspaces and various virtual communication platforms.
COVID-19 triggered a pivot to mass remote work that resulted in virtual work and communication platforms becoming a principal, and seemingly permanent, component of the workplace. However, the pandemic did not change the long-standing legal framework for employers to avoid liability for employee misconduct. Instead, the magnitude and duration of the shift from a traditional in-person workplace to online work environments created an informal atmosphere where employees may approach work with a casual attitude and engage in conduct as if workplace conduct policies do not apply. Employers embracing remote work, either exclusively or on a hybrid basis, should review and update their employment policies and trainings to ensure employees understand what virtual forms of harassment and other inappropriate conduct look like—and how they need to adapt their conduct and appearance to virtual workspaces.
Virtual Harassment and Misconduct
Employers have a legal responsibility under federal, state and local law to provide a work environment that is free of harassment and discrimination in connection with a broad range of protected classes, including race, color, religion, sex, national origin, age and disability. This responsibility is not tied to a physical location; it extends to virtual work environments and has done so for decades.
In fact, the New Jersey Supreme Court recognized the existence of “virtual offices” and remote work nearly 22 years ago in Blakely v. Continental Airlines, 164 N.J. 38, 60-61 (2000) when it considered whether an employer could be held liable for sexual harassment that occurred on an electronic bulletin board used by employees. In deciding that employers could be held liable for such conduct, the court cautioned employers that their employment policies should cover conduct in the ever-changing, internet-connected work environment. The court also reinforced the requirement that, to avoid liability, employers need to address inappropriate online conduct when they are made aware of it.
Heeding the warning of the Blakely court, employers have prioritized compliance through the development and implementation of anti-discrimination/harassment policies and mechanisms to investigate and address workplace complaints. As new technologies and modes of online work changed over the years, employers revised their policies and trainings and developed new ones to address employee activities online, including policies pertaining to computer use, email and instant messaging. As a result, employees have been on notice for quite some time of their obligation to conduct themselves in a professional manner and comply with company policies regardless of the setting of their workplace.
Nonetheless, the introduction of videoconferencing with little or no in-person interactions among colleagues for what has turned into an open-ended period of remote work has created a casual work atmosphere and caused employees to act as if the usual workplace policies and expectations of conduct do not apply in their online environments. This casual atmosphere heightens the risk of inappropriate conduct. To avoid potential liability, employers should remind employees of their obligation to conduct themselves in a professional manner throughout the workday—regardless of whether their work is conducted in a physical or virtual environment—and refresh their knowledge of relevant workplace policies (anti discrimination/harassment, dress codes, technology use policies, alcohol and drug use and others) through appropriate training.
Evaluate and Improve Policies
Before doing so, employers should review and update their policies and trainings to ensure that they explicitly cover current virtual communication platforms, including audio and videoconferencing, team chats and text messages. The policy updates and training materials also should provide updated hypothetical examples of prohibited online conduct, including examples of sexual harassment and discrimination, to identify virtual forms of inappropriate conduct not previously contemplated or easily identified. Most workplace harassment and discrimination claims arise from in-person workplace interactions, such as unwanted physical contact or in-person gestures such as “elevator eyes” and lingering around a co-worker at the office. Harassment and discrimination may look different or appear less obvious in a virtual environment.
For example, a supervisor may request too-frequent or unnecessary one-on-one meetings with a subordinate on camera solely because the supervisor wants to see the employee. Taking pictures or screenshots of co-workers appearing in videoconferencing, making comments about an employee’s physical appearance or background during a videoconference, and excluding an employee from team chats and meetings are other examples of conduct that could lead to claims of harassment or discrimination. Examples of this type of conduct should be included in the policy and training updates to help employees identify and avoid inappropriate online conduct.
Employers also should review and modify, if necessary, existing policies to address appropriate appearance and business communications etiquette. An update to a dress code policy or the development of new virtual appearance policy should explicitly cover expectations for virtual appearances, including whether employees must appear on camera and, if so, set standards for background screens as well as proper attire. Work-from-home attire considered appropriate during the pandemic may not be acceptable for the long term, and there are some employees who take business casual attire to an unprofessional level.
Similarly, updates to a business communications policy should set standards for employees to follow in their online communications and remind employees to be clear and professional in their communications. Employees are primarily communicating online from their personal living spaces—or their favorite coffee shop—via instant messaging, group chats, texts and emails. They may take a more casual attitude toward these virtual communications and include acronyms, emoji, memes and GIFs that easily can be misinterpreted or perceived as offensive.
Employers should also ensure drug-free workplace policies address virtual work environments. Adult recreational use of marijuana is now legal in 19 states and the District of Columbia. However, none of those laws obligate employers to accept marijuana use or impairment during work, and they are free to prohibit it even in virtual work environments.
Communicate Policy Updates
Once updated, the policies should be communicated clearly to employees either by direct distribution of the updates or via intranet hyperlink access with an acknowledgment statement to document employees’ receipt and understanding of the updates. Employers also should train employees on the updates and remind them how to report incidents of harassment, discrimination and retaliation. All reports should be taken seriously and addressed. In the event it is necessary to discipline an employee, the reasons should be documented and the discipline should be proportionate and consistent with disciplinary action imposed on other employees who engaged in similar conduct, whether in a traditional or virtual workplace setting. In this regard, consideration should be given to including revocation of remote work privileges as a form of discipline that may be imposed for policy violations, if practical.
Neither remote work nor employee use of employer-sponsored virtual platforms is new. What is new is the scale of this activity and its creation of a more casual, less conventional, workplace setting. This shift to a virtual work environment has made it easy for employees to forget that workplace conduct policies apply in their online remote work environment. Taking the opportunity to review relevant employment policies with employees and remind them how they are to communicate and behave when they are working in person or virtually can go a long way toward limiting risks of inappropriate conduct.
Originally published by New Jersey Law Journal.