When Discrimination Hits Home: Challenges with Remote Working

This month we had the pleasure of speaking to Dale, an employment law specialist, who discusses the challenges companies will face in California now that more employees are working from home. How can discrimination still occur from home and what can employers do about it? Read on to find out.

What challenges are companies facing when their employees are working from home?

 SARS-CoV-2, otherwise commonly known as Covid-19 or coronavirus, has reshaped our lives and our workplaces.  Never in the history of the world has so much emphasis been brought to bear on health and safety to counter anything in the workplace as deadly as this pandemic.  Never before have science and medicine joined forces using advance technologies to take on this deadly virus and limit the casualties.  Some may say that the virus is nature’s way of thinning out the population as a “Malthusian catastrophe”. Religious groups may interpret this as a sign to “come together” in a Lennonesque way to end divisiveness. Whatever the interpretation, this virus, as with SARS and MERS, has awakened a collective consciousness to stop its spread.

An analysis by the UN Department of Economic and Social Affairs (DESA) determined that the Covid-19 pandemic is disrupting global supply chains and international trade and could shrink the global economy by almost 1%.  The implications are devastating to mid-size and small businesses that are subject to “lockdowns”, “business closures”, and “stay-at-home” orders.  According to JP Morgan Chase & Co. Institute Small Business Data, 99% of America’s 28.7 million firms are small businesses with the vast majority of those firms having fewer than 20 employees.  These small businesses are not well equipped to handle closures of more than 30 days, sustaining themselves, making rental and inventory payments, just to keep their “shut doors” proverbially open for business during the stay-at-home orders.

There is a reaction-time delay occasioned by working from home.

Snagging a stimulus check may help, but it cannot erase the bottom-line losses. Many businesses shutter and close. Many employees are laid off and file for unemployment benefits and other forms of relief.  On 19 March 2020, Governor Gavin Newson of California ordered nearly all residents to stay home and limit social interaction.  Those employers that could continue to operate have their employees work from home.  In the executive and professional fields, the adjustment is met with considerable problems with access to clients’ hard files, proprietary company information that may be encrypted on company servers, and face-to-face conferencing, vital to maintaining the clients’ best interests and their loyalties.  There is a reaction-time delay occasioned by working from home.  An example of this is manifested by a regular client who calls a law firm and is greeted telephonically by a receptionist working remotely.  That receptionist places the client on hold and contacts the legal secretary, who in turn must contact the assigned lawyer.  The delays are accentuated if either the legal secretary or the lawyer do not answer the call.  Additionally, files, if not downloaded into the company’s file sharing system, may be difficult to access or locate causing additional delays and frustrating the client.

How can discrimination still occur when employees are working remotely?

Discrimination should decline if working remotely.  Face-to-face interactions can trigger more discriminatory and retaliatory actions. When one is safe at home, there are fewer occasions where discrimination could crop up. Nevertheless, discrimination can rear its ugly head when one employee is placed on a leave of absence and another is allowed to work remotely. Preferential treatment may have a discriminatory flavouring to it that can violate federal and state discrimination statutes.  During this Covid-19 era of vulnerability, the employer’s ‘doing the right thing’ may be actually doing the wrong thing.  For example, the employer determines to have an older worker [more than 60 years of age] work from home, yet a much younger worker [under 40 years of age] work from the office.  The employer justifies its decision by stating that the older worker is in the demographic of those most severely affected by the virus; thus, as the logic follows, taking him out of the workplace benefits the older worker’s health and safety. Where discrimination could be felt is the removal from the workplace when it might be viewed as more disciplinary, hence the older worker is one foot out the door.

The best approach is to make sure that there are no discriminatory preferences in assigning employees to work remotely.

 

But, let’s take the example a little further.  The employer pays both the older and younger worker their set pay.  In most instances, the older worker has more seniority than the younger employee. A reverse logic, just as compelling, can apply.  The younger worker could transmit the virus and there is a good chance he will survive without obvious afflictions. They should be the one that stays home to safeguard the older workers.  The fact that the employer designated the older worker to stay home may be fertile evidence of age discrimination.  This results in a huge decision to be made by the employer, walking a tightwire of health and safety concerns, on one side, and, the other side, a potential discrimination claim, something Leon Russell would sing about, “Up on the tightwire, where one side’s ice and one is fire”.  It may be a lose-lose situation for the employer.  The best approach is to make sure that there are no discriminatory preferences in assigning employees to work remotely.

How can companies tackle this from home to ensure no one is being discriminated against?

With remote working from home, Human Resources (HR) cannot probe deep into the bowels of the home to ascertain if discrimination is occurring.  It will have to rely solely upon the employee’s complaint of discrimination or harassment.  Using a platform of communication with co-workers to fulfil their job’s directives through Go-To-Meeting or Zoom may provide recordation of video and/or audio transmissions that can substantiate claims of harassment and discrimination.  But when dealing with text messages or personal emails (not on the company’s servers), HR’s role in any investigation will be highly dependent on the victim’s report of discrimination or harassment.

What steps can companies take to ensure mental health is still being addressed, despite not being in the office?

One of the tools used by employers for years in getting rid of undesirable employees is by placing them on administrative leave with pay.  The employers then fill the position with another and acclimate the staff with the new worker.

In recent years, companies have been grappling with mental health issues involving employees who exhibit signs of job fatigue (similar to battle fatigue or PTSD) occasioned from job pressures, time constraints, personality clashes with managers and co-workers, and pre-existing deep-seated mental illness. Working from home may dull the sharpness of those mental health issues because the home serves as a haven for each employee: a comfort zone for job place stressors.  Over time, working remotely will cause a sensation of isolation and depression. The loss of interaction with co-workers can deepen that depression.  Many companies will characterize those issues as short-term in nature believing that repatriation with the company is just around the corner.  I doubt that any employer would commit the revenue, in the short term, to advancing the mental health of its remote employees, other than through the company’s health insurance program.

Keeping the dialogue is important so that employees do not miss out on opportunities had they remained at the office. How can employers remain equally inclusive?

One of the tools used by employers for years in getting rid of undesirable employees is by placing them on administrative leave with pay.  The employers then fill the position with another and acclimate the staff with the new worker. Then, the hammer falls on the absent employee, terminating him under the at-will provisions.  This is part of the “alienation” or separation process.  It has worked well for employers. But Covid-19 presents its own debacle. Having employees work from home as part of the across-the-board shut down of the enterprise carries very little divestiture in new opportunities. Where one employee is placed in a perpetual stage of working from home when other employees are called back to work at the office is where litigation ripens. As noted above, any time the employer shows preferential treatment, the decision must have no axiomatic connections to inherent discrimination based on gender, sexual preference, age, marital status, race, national creed, disability, pregnancy, etc.  Callbacks to work must be made impartially and certainly without discriminatory or retaliatory preference; it must be neutral in all respects.

When an employee is furloughed without compensation, there is an estrangement that occurs.  The mindset of the furloughed is, “the company does not think I am valuable enough to keep on the payroll during this crisis”.

From a legal perspective, how can employers welcome back furloughed employees?

Gracefully.  When an employee is furloughed without compensation, there is an estrangement that occurs.  The mindset of the furloughed is, “the company does not think I am valuable enough to keep on the payroll during this crisis”.  The expendable feelings interfere with the complex nature of the business having to shut down for its own survival.  The company, if required to shut down, has no choice in the matter.  It furloughs its employees.  If it does not keep the employees on payroll, contravening government orders to do so, the employees begin to disconnect emotionally from the company. As every week passes by and the bills begin to mount, the stations of life those employees have grown accustomed to, begin to fade. A certain amount of animosity is levelled toward the employer for the precarious circumstance the employee and his/her immediate family faces.  Unless the employee is under written contract for a term period, there is very little backlash to the employer from a legal perspective.  A shut down provides a complete defence to a claim of wrongful termination.

Nevertheless, the employer must re-engage the returning employee to “heal the wounds” and the frazzled perceptions caused by the furlough, welcoming the employee back with “open arms.”

The federal and state courts in California closed or were partially operational during the first two months of the virus, only open for emergency cases.

What new challenges have you witnessed over the past few months?

The virus did not stop litigation at the arbitral level.  The federal and state courts in California closed or were partially operational during the first two months of the virus, only open for emergency cases.  But arbitrations continued will little change. Several arbitral services were already accustomed to engaging arbitrations with “virtual” witnesses appearing through Zoom.  In May 2020, I tried a 5-day arbitration with approximately 13 witnesses and over 300 exhibits before an arbitrator, completely and virtually from home.  I did not have to wear a suit. Lunches were shorter.  We made a full day of it though starting at 9:30 a.m. and going to 5:30 p.m.  The parties appeared through Zoom and utilized Veritext’s Exhibit Share, which allowed witnesses to view exhibits from their home computer terminals. Presenting exhibits was a little slower than a live presentation, but the job got done. A couple of witnesses created virtual backgrounds with one showing a Hawaiian seafront, palm trees blowing, though the latter comically admitted that he was seated in his garage.

Has the pandemic changed employment law? What things should employers be looking out for, now there is a rise of companies moving away from working in offices?

Are companies moving away from working in the office? Those that have been subject to stay home orders and continued to work see the benefit of reduced travel time and the increased use of video conferencing to fulfil their job’s objectives.

The pandemic hasn’t changed employment law in any respect when those laws were already broad enough to protect workers. The Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) continue to protect workers who have been hospitalized or under a doctor’s care.  If there is any permanent condition associated with Covid-19, primarily respiratory problems associated with breathing, the Americans With Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) will provide coverage for permanent disabling conditions. Many companies have instituted their own policies that supplement the protections in place.  For example, my sister, Maureen, is a flight attendant for Alaska Airlines. In March 2020, Alaska Airlines implemented a Covid-19 policy, where flight attendants could take unpaid leave of absence if they were determined by the Centers for Disease Control and Prevention (CDC) as high risk or if they resided with someone who was high risk from a Covid-19 exposure.  Alaska Airlines also offered parents with minor children leave without pay.  After 30 days, Alaska Airlines implemented a 30-day staffing leave followed by another staffing leave giving the flight attendants the option of staying home for one to three months.  Maureen is due to return at the end of August 2020.

Being laid off from the job hurts the inner core of an employee.

Are companies moving away from working in the office? Those that have been subject to stay home orders and continued to work see the benefit of reduced travel time and the increased use of video conferencing to fulfil their job’s objectives.  The jury is still out though, on whether this will be the wave of the future.  Companies, through their management, love the corporate “dazzle” effect – impressive offices, large and accessible staffing bases, elaborate furnishings and large signage that stoke the corporate ego.  Having employees working from home defeats that goal. Corporate America wants its employees near and dear.

What if employees feel apprehensive about returning to the office? What are their rights?

Being laid off from the job hurts the inner core of an employee.  That employee has given himself/herself to the enterprise and now, in times of trouble, the employer betrays the employee sending him/her off without pay to fend for himself/herself.  That feeling of replaceability sets in.  Some employees will find other work; other employees will remain true and blue to their bosses.  If they are determined to leave the company, they have every right to do so.  Their employment, in most instances, is “at-will” and, therefore, they are free to find other employment with or without notice to the furloughing employer. Just as the employer lays off the employee as an act of disloyalty, so too can the employee’s act to find a substitute position.  No one can say that the employee must undergo any hardship, endure any burden, financial or otherwise, including facing bankruptcy, divorce, eviction, creditworthiness downgrades, loss of health insurance, just to stay loyal to the employer hoping that one day he or she may be returned to the ranks of employed.  The employee must remain proactive during these uncertain times making sure he/she survives the virus but also survives financially.

From my observations and experience, employees have lost their right to a fair trial.

Have arbitrations eroded employee rights?

 From my observations and experience, employees have lost their right to a fair trial.  At the time the employees are hired they are compelled to sign numerous documents with little or no expression coming from the employer as to what they are signing.  The rationale is, “if you want to be employed here, sign these”.  Along with those documents, in many cases, are “at-will” employment provisions and mandatory arbitration provisions that compel arbitration for any employment dispute.  As part of the arbitration provisions, the employee surrenders his rights to a civil jury trial and his right to a collective, representative or class action.  Later, if a class action should surface, the employer will argue that when the employee signed the arbitration provisions, they could never be a putative class member.  They will be, as I have referred to, “dismembered” from that class.

Additionally, and more concerning, is the whole arbitral process. Most of the arbitrators are retired judges and magistrates who collect a state or federal pension and keep their feet wet in the waters of litigation by signing on to arbitrations to supplement their retirement.  The minority are attorneys who practice as arbitrators.  In those instances, the attorneys know who is paying for the arbitrations – the employer.  Repeat business is important for the arbitrators’ livelihood.  Though Lady Justice is supposed to be blind, there is a dire need for the arbitrators, who may be without pensions, to please the employers.  It is not as likely that an employee who wins will generate repeat business for the arbitrators as when an employer or his counsel wins.  I have learned on some 25-30 arbitrations I have handled or currently handle that the employer’s counsel reminds the arbitrator who is paying the bills. I have observed employer’s counsel refer a case to an arbitrator who is deciding an important issue on a related case.  That case referral translates to “buying influence” over the decision. The “fair trial” concept is jeopardized even if the arbitrator says he or she can weigh the evidence fairly. I don’t believe that employment arbitrations can continue in this fashion much longer.

Whether one is 20 years or older, if the marketplace no longer needs one’s skills or talents, what happens to the human psyche?  It is the discrimination to end all discriminations – when humans are completely displaced from the workforce.

As the workforce changes and technologies advance, are workers being devalued?

I have recently authored a book entitled “The Devalued,” which drives the belief that as technologies develop and computers assume more and more of our daily lives and work experiences, we become “Devalued.” If there is no longer employment for us, our own self-perception of value whither.  When the need for humans to perform jobs is no longer a requirement, what happens to the self-esteem of each individual? Whether one is 20 years or older, if the marketplace no longer needs one’s skills or talents, what happens to the human psyche?  It is the discrimination to end all discriminations – when humans are completely displaced from the workforce.  It is a book that will open people’s minds to a new reality that is just around the corner.

 

Dale M. Fiola – Attorney at Law

200 North Harbor Boulevard, Suite 217

Anaheim, CA 92805

Phone: (714) 635-7888

 www.dalefiola.com

Law Offices of Dale M. Fiola have represented employees for over 42 years combatting the injustices of the workplace and remedying the problems of discrimination and wage and hour violations. 

 

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