Six Types of Investigations Coming Soon to a Workplace Near You
COVID-19 has forced everyone to made sudden and dramatic changes to almost every aspect of their lives. Restrictions put into place to slow the spread of the virus have forced many businesses to either close or abruptly shift to telework. Numerous workers have had their hours or compensation reduced or have lost their jobs entirely.
As businesses begin to slowly reopen, employees’ concerns about health, safety, job security, and fairness may fuel a variety of COVID-related complaints, increasing the need for workplace investigations. Here are six areas to watch as employees return to the physical workplace.
1. Discrimination Investigations
Companies that have laid off or furloughed employees may face allegations that those decisions were made for improper reasons. For example, if a company has selectively laid off its most highly paid employees, you may see claims of age discrimination if the decision disproportionately impacted older workers, who often tend to earn higher salaries. Selection decisions that appear to single out those of a particular race or national origin, such as Asian or Chinese workers, may also draw challenges.
Similarly, discrimination allegations may arise from employers’ decisions as to which workers to bring back to the workplace and in what order. For example, if a company calls back “low risk” employees first due to safety concerns, the “high risk” employees may disproportionately include individuals in protected categories, such as older, pregnant, or disabled (or “regarded as disabled”) workers, or those with protected medical conditions such as HIV or cancer. You may also see allegations that an employee was not asked to return to work because of their association with someone who is of a specific race/national origin (such as a spouse) or who has a disability or medical condition (such as a spouse or child with an autoimmune disease).
Marital status and gender discrimination is also a risk. Consider a decisionmaker who decides that a male who is the sole breadwinner of a household should be prioritized to return to work over a female worker whose spouse has a high-paying job.
2. Harassment Investigations
Unlawful harassment can obviously still occur even if employees are no longer working in the physical workplace. In fact, it may be more likely while employees work from home, where some may not remember or even realize that the same workplace rules apply. Employees often let their guard down in the same way during business travel, conventions, and holiday parties.
Most employees know not to share racy pictures or make racial jokes while at work, but this line may be less top-of-mind when communicating with colleagues via text or chat messaging from their home offices or bedrooms. Similarly, video conferencing poses new risks. Recently, a reporter’s news broadcast went viral after his camera accidentally revealed that he was not wearing pants. You may see claims as a result of offensive or sexually explicit images being visible in employees’ homes during Zoom calls.
As businesses begin to reopen, you may also see increased allegations of harassment based on race and national origin. The EEOC recently issued a statement about reports of mistreatment and harassment of Asian Americans and other people of Asian descent due to COVID-19’s reported origination in China.
As always, it is particularly important that allegations of harassment are promptly and thoroughly investigated. Employees working from home may be more likely to report their concerns via company business conduct or ethics hotlines, so you should consider whether these reporting channels are adequately monitored and staffed for an uptick.
3. Safety Concerns and Whistleblower Retaliation Investigations
Safety will likely be at the forefront of employees’ minds when returning to in-person work. You may see increased reports of OSHA-related and other safety concerns. Although OSHA has provided initial
COVID-19 guidelines, the legal landscape is changing rapidly, and safety missteps may inadvertently occur.
In addition, if an employee who has reported OSHA or other safety concerns later suffers an adverse employment action, such as loss of job duties, promotion, or pay, that could lead to a whistleblower retaliation claim. Such claims may also arise from employees who refuse to return to work because of safety concerns.
4. Reasonable Accommodation Investigations
As companies ask employees to return to in-person work, they may find some employees reluctant to return, particularly employees with conditions that make them more susceptible to COVID-19, such as those with compromised immune systems. Employees with disabilities may ask to work remotely as a reasonable accommodation. Denying such a request could be especially risky if that employee, or even other similarly-situated employees, previously had permission to work from home during the lockdown.
Employers should be mindful of the new EEOC guidelines regarding COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws.
5. Leave Law Compliance and Retaliation Investigations
The new Families First Coronavirus Response Act (“FFCRA”) imposed the first-ever federal paid sick time mandate for employers with fewer than 500 employees. The FFCRA adds to the often-complicated leave laws that already exist at the federal, state, and local level. In addition to allegations that employers did not properly determine employees’ eligibility for leave or miscalculated their pay, you may see allegations that employers retaliated against employees who requested protected leave.
6. Timecard and Wage/Hour Investigations
The sudden shift to telework has given employees the ability to work more flexible hours, but employers may struggle to ensure that those hours are accurately recorded and that non-exempt employees are not working through their meal and rest periods. There may be more cases of alleged timecard fraud and claims of unpaid overtime or meal period penalties.
Investigations may be complicated by the fact that traditional methods of investigating these issues may not be available. For example, employees who have been working from home no longer generate security badge records that can be easily reviewed to compare to their time records. Investigators will likely have to spend more time analyzing emails and other digital records to determine actual hours worked.
Conclusion
The reopening of America will likely result in a dramatic increase in employment-related claims and investigations. It is important to be mindful of the foregoing issues in making employment decisions and in preparing for the investigations that are coming soon to the workplace.
