Levy Employment Law Blog - Page 2 of 17

4

August, 2022

Workplace Investigations: Video vs. In-Person Interviews

Prior to the pandemic, in-person interviews were generally considered the preferred method of conducting workplace investigations. They allowed the investigator to build rapport with the interviewee, the investigator could observe behaviors by the interviewee that might be relevant to credibility, and the investigator could know who was present for the interview and ensure a private meeting. But in March 2020, that all had to change. My Cornell colleagues and I wrote an article at that time, assessing the opportunities that videoconferencing offered as a virtual alternative to in-person interviews and identifying the caveats and precautions for which the investigator should be prepared.

Nearly two and a half years later, while employees have returned to their workplaces to varying degrees, I continue to conduct virtually all my workplace investigations by videoconference. Yes, it saves me a commute, but I actually like getting out into the world with people and I care deeply about ensuring the integrity of my investigations, so saving the commute would not suffice if it compromised my quality standards. Rather, over the period that remote interviews were the only viable option, I have come to appreciate some enduring advantages that they offer over in-person interviews.

Ensuring Privacy

Pre-COVID, one of the greatest challenges I faced when conducting in-person interviews was in securing a private location for those meetings. Most workplaces have shifted to glass-walled offices and conference rooms, many with little or no shading to afford visual privacy. I would strategically situate myself so that I faced outward, and only the interviewee’s back would be visible to passers by, but that afforded only a limited degree of anonymity. I would request to use a conference room or office that was off the beaten path, or at least in a different location than the coworkers of the people I would be interviewing – with mixed success.

For one investigation, I visited nearly every coffee house in a five-town radius of the client’s office. No interviewee felt comfortable that the office could afford privacy and each had a different idea, in relation to their own hometown, as to where our presence would go unnoticed. Investigation interviews can be conducted successfully in a coffee house or similar public space, but it requires the right mix of variables – other people conversing, so that my interview will not be a prominent sound in the space; a table spaced far enough from others such that it will be difficult for the people closest to us to eavesdrop; and frequent turnover or activity so that if we lingered longer it would not be noticed.

Videoconferencing spares me most of those logistical challenges. With the caveat that my interviews are generally conducted in areas where wifi access is abundant, I have extremely rarely had to shift from video to audio only interviews. Even employees who do not have a laptop or tablet are able to meet through their smartphone. The challenge with videoconferencing is that you never know who may be offscreen, just as you never know if your conversation is being recorded, so confirming the person is in a private place to speak sets a baseline expectation.

Keeping Everyone Safe

Videoconferencing offers the ultimate assurance of social distancing. While we may have moved past the worst of the pandemic, the need to quarantine or isolate due to exposure to COVID-19 can still arise at any time, and side-line plans for in-person meetings.

Videoconferencing also reassures all parties against exposure to other infectious diseases and milder ailments. Years ago, when I was conducting investigations internally as an Employee Relations specialist, I once came to work while fighting a bad head cold so I could proceed with the scheduled interview of the respondent, a relatively senior manager who had a very busy schedule. After the interview, I received feedback from the HR Business Partner that the respondent complained I had been sneezing throughout our meeting. Rather than being appreciated for my perseverance and commitment, I had made the manager uncomfortable by my physical presence. It was an interview that I should have postponed, or taken from the safer distance of a video screen.

More recently, I met in person to interview the respondent for a particularly sensitive matter. Having just recovered from COVID-19 and completed my 10 days of isolation, I was feeling unusually secure about meeting in-person. The day after the interview, I developed symptoms and tested positive for a rebound of COVID, and was put in the uncomfortable position of having to reach out to the respondent and others who had been present for that interview to advise them of their possible exposure. Meeting by videoconference ensures that the investigator, the interviewee, and any third-party representatives are all safe from infection.

Moving Things Along

One of the other benefits of videoconferencing is that it enables speedier coordination of meetings. Scheduling time to meet with individuals who travel frequently or work in multiple locations is much simpler when they can join via videoconference from virtually anywhere.

Making Exceptions

Notwithstanding these benefits, there still are times when videoconferencing may not be an ideal option. In particular, videoconferencing makes it slightly more challenging to build rapport and make the interviewee comfortable enough to provide the investigator with responsive information. For that reason, when conducting interviews of individuals who report having experienced traumatic situations, such as sexual assault, in which building and maintaining that rapport and comfort is essential, the benefits of meeting in-person may outweigh the challenges.

There is no one right way to conduct workplace investigation interviews, provided there is a considered process behind decisions that are made. Videoconferencing offers advantages, and my old bias toward in-person interviews has given way to a new reality.

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In this Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

1

August, 2022

3 Key Considerations Under GINA – the Federal Law You May Have Overlooked

The Genetic Information Nondiscrimination Act (GINA) may be the sleepiest of the federal EEO laws, the one that many employers have never heard of or have entirely forgotten. It prohibits employers from collecting genetic information from employees and using that as a basis for employment decisions. Most employers, in the practical realities of day-to-day interactions, have little or no interest in their employees’ genetic information and never run afoul of the law. The EEOC’s charge-filing statistics reflect this as well. Of the tens of thousands of charges filed annually with the EEOC, typically only 200 to 300 include reference to a claim under GINA.

But things have changed a bit with the pandemic. Charge filings asserting a violation of GINA spiked to 440 in 2020 as employers began more formally to formally probe into employees’ personal lives, and the EEOC posted lengthy guidance on employers’ obligations under various federal laws, including GINA, when responding to the COVID-19 pandemic. The EEOC’s guidance sets the parameters of appropriate inquiries in the COVID-19 context, but it also serves as a primer for employers on the scope of GINA.

Don’t Ask About Family Members

GINA prohibits employers from asking medical questions about family members. In the COVID-19 context, that has meant that employers seeking to gather information about employees’ COVID exposure can ask if an employee has been in close contact with someone who tested positive or was exhibiting symptoms of COVID. An employer cannot ask whether an employee’s family member has tested positive for or exhibited symptoms of COVID. The latter inquiry runs afoul of GINA.

Similarly, in more typical workplace interactions, employers should coach their managers not to probe too closely into employees’ family medical histories. If an employee reports a recent cancer diagnosis, for example, an appropriate response is to express sympathy and ask if the employer can provide support. An inappropriate response in having that conversation is to ask whether cancer runs in the employee’s family, or anything along those lines – such inquiries might be common in conversations with friends and neighbors, but in the workplace they may run afoul of GINA.

A Florida-based medical practice learned a painful lesson on the reach of GINA. The employer had been collecting employees’ family members’ COVID-19 testing results. The EEOC recently announced it had reached a conciliation agreement with this employer, which included payment of compensatory damages and back pay to employees, posting a notice, and conducting training on EEO laws pertaining to COVID-19. The employer also had to stop collecting employees’ family members’ test results.

Collecting Vaccination Information is Permissible

The EEOC guidance clarifies that information on vaccination status (as distinct from COVID symptoms or test results) is not considered family medical history. Therefore, employers can request proof of vaccination of employees and their family members without violating GINA. Notably, though, if an employer were to gather information on medical history related to an employee’s family member’s vaccination status, then the employer would potentially run afoul of GINA. It was important to the EEOC’s analysis that the pre-vaccination screening questions for COVID-19 do not seek family history or any other type of genetic information.

Incentivizing Vaccinations is Complicated

Employers looking to take their COVID precautions to the level of incentivizing employees’ family members to get vaccinated face various hurdles under GINA:

1. Beware of incentives.

The employer cannot offer an incentive to the employee in exchange for a family member receiving a vaccine from the employer or the employer’s agent because, in posing the pre-vaccination medical screening questions, the employer would thereby be collecting family medical history on the employee.

2. Make it Purely Voluntary

The employer must ensure that the vaccinations of family members are purely voluntary, meaning that the employer neither requires employees to have their family members get vaccinated nor penalizes employees whose family members opt not to be vaccinated.

3. Keep it Confidential

Employers need to safeguard the confidentiality of the medical information obtained from family members during the screening process, and ensure it is not shared with anyone who makes employment decisions involving the employee.

4. Get Written Consent

Employers need to obtain prior, knowing, voluntary, written authorization from the family members before asking any pre-screening questions or administering the vaccine.

Other EEO laws may present additional hurdles in the vaccination context, and employers are advised to consult legal counsel before implementing any vaccine incentive program.

By Tracey I. Levy

25

July, 2022

CTFMLA Notice to Employees Is Overdue, Employers Need to Update Policies

Connecticut employers sorting through the complexities of the amended Connecticut Family and Medical Leave Act (CTFMLA) and Connecticut Paid Leave Act (CTPL) need to ensure they are providing all new hires with the requisite notice, which explains CTFMLA entitlements, employee obligations, the prohibitions against retaliation, and the procedures to file complaints with the Labor Department for alleged violations. This is a new requirement, effective as of July 1, 2022.

Employers additionally have an ongoing obligation to provide employees with notice of their rights under CTFMLA and CTPL on an annual basis. Employers may wish to update their employee handbooks to include the notice provisions. While not yet final, pending regulations proposed by the Department of Labor indicate that such a handbook update will satisfy the annual notice requirement. Also, FAQs issued by the Department of Labor include this recommendation.

Expanded Reasons for Leave

CTFMLA and CTPL collectively provide eligible employees with job-protected leave and income replacement while the employee:

recovers from or cares for a family member with a serious health condition;
bonds with a child newly added to the family;
serves as an organ or bone marrow donor;
addresses qualifying exigencies related to a close family member’s military service; or
cares for a close family member who is seriously ill or injured while on active duty in the armed forces.

CTFMLA provides the job-protected leave entitlement, while CTPL is an income replacement program. CTPL is additionally available for employees who have been impacted by family violence, and in that context the employee’s ability to take the leave is protected under the Connecticut Family Violence Leave Act.

Other CTFMLA Provisions Also Expanded

Employers should note that these laws are newly effective as of January 1, 2022. They alter and expand employers’ prior CTFMLA obligations and add a new layer of paid leave. Employers that were familiar with and meeting the prior CTFMLA requirements must ensure that they have updated their policies and practices to reflect the changes to the law – which expand the uses of CTFMLA, and shift from a schedule of leave taken over a 24-month period to a program of up to 12 weeks of job-protected leave over a 12-month period (thereby more closely mirroring the federal FMLA). The new CTFMLA further grants employees who are incapacitated due to pregnancy an additional two weeks (14 in total) of job-protected leave, and again mirrors the federal FMLA in that it provides employees who are caring for a covered service member with up to 26 weeks of job-protected leave in a 12-month period. Another key change under the new version of the CTFMLA is that, while employers can require employees to use their accrued, paid time off during their leave period, employees can exempt from that requirement and preserve up to two weeks of their paid time off to be used for other purposes.

By Tracey I. Levy

21

July, 2022

Workplace Investigations: When Should You Consider Retaining an Outside Investigator

Increasingly, organizations are conducting workplace investigations in response to employee concerns – both those raised formally to human resources or through a written complaint or attorney demand letter, and those raised informally in a conversation with a supervisor that is brought to human resources’ or an equivalent function’s attention. Matters that, in the past, might have been handled by a conversation with the subject of the complaint and perhaps one or both parties’ managers are now referred for an investigation. That typically comprises documented interviews with both parties and others believed to have relevant information, as well as a review of other materials, including documents, electronic communications, recordings, and physical items.

Human resources is most typically tasked with conducting these types of investigations. In organizations with a larger HR function, there may be a dedicated employee relations function or equal employment opportunity (EEO) office to handle the investigation of matters potentially involving serious policy violations, such as the EEO or workplace violence policies. Complaints about workplace conditions (not involving health or safety concerns) or more generalized issues of unfairness or favoritism (not based on any protected characteristic) are often looked into by the HR generalist supporting that business function.

Sometimes, though, an organization is best served by retaining someone outside the organization to investigate a workplace concern. In my 15 years conducting workplace investigations, I have found that determining when to retain an outside investigator largely depends on four factors: conflicts of interest, sensitivity of the issue, skills and experience, and workload management.

Conflicts of Interest

CEOs/business owners, board chairs and other senior leaders can be the subject of an employee complaint reflecting a potential serious policy violation. Or a workplace concern may involve the head of the organization’s human resources, compliance or legal function. In each of those circumstances, the individuals within the organization who would typically be conducting a workplace investigation are being asked to look into a complaint against the people who ultimately determine the investigator’s pay and future with the organization. The internal investigator’s independence and ability to conduct an effective investigation may be compromised in that situation.

Even if the internal investigator feels equipped to disregard the underlying power dynamics and objectively gather and evaluate the factual information, there is an overriding appearance of undue influence that may undermine the confidence of the complainant or other parties in the objectivity of the outcome. The complainant may raise concerns about the process to coworkers, and employees may be disinclined to raise concerns internally in the future.

An outside investigator can help an organization avoid these conflict-of-interest concerns. The outside investigator may be retained by and asked to report directly to the board, outside legal counsel, or a senior leader within the organization who is above or outside the reporting lines of the parties involved in the matter (such as reporting to the CEO or CFO on a matter involving department heads within human resources or legal).

Sensitivity of the Issue

Sometimes the nature of the concern raised warrants retaining an outside investigator. For example, matters involving a sexual assault or a domestic violence issue that has carried into the workplace may present particular sensitivities that the internal investigations team is not experienced to handle. A trauma-informed approach is recommended for investigating these types of matters, which involves a focus on open-ended questions, delicate probing, and an appreciation that the complainant’s account may be fragmented or disjointed but still credible. These attributes of a trauma-informed approach are arguably best practices for any workplace investigation, but if the internal team lacks appropriate training in them, then an outside investigator may be a better option to conduct an appropriate investigation.

Skills and Experience

Smaller organizations often do not have an internal human resources function. HR support may be provided through a professional employer organization (PEO) or may be assigned to the business owner, the head of operations or the finance head. Or perhaps an organization does have one or more internal people responsible for human resources, but their role and experience has primarily focused on recruiting, benefits administration or HR advisory work, with little or no experience conducting workplace investigations. In these situations, leveraging the skills and experience of an outside investigator is helpful. Some organizations will retain an outside investigator for support on an ongoing, as-needed basis, while others may retain an outside investigator more ad hoc, if a concern has been raised where an investigation seems appropriate.

Workload Management

Finally, sometimes an internal HR or investigations team just has too much on its plate or is short one or more staff and needs additional resources on an interim basis. In these situations, the outside investigator still offers the benefit of more independent accountability and perspective, but primarily the investigator’s value is in being able to “hit the ground running” and offer support.

Final Considerations

An experienced outside investigator can be a helpful resource to organizations in a range of situations. It is helpful to articulate to the investigator at the outset the business issue that prompted reaching out to someone external to the organization. If, for example, an outside investigator is being retained due to a conflict of interest, then clarifying to whom the investigator will be reporting is important to ensure there is no perpetuation of the conflict. And if the investigator is simply an extra set of hands to manage workload, then it is important to clarify when and how the investigator will be engaged for specific matters.

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By Tracey I. Levy

18

July, 2022

EEOC Removes Employers’ Blanket Authorization to Test Employees for COVID-19

Responding to the evolution of the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has concluded that we are past the emergency stage when it was always considered appropriate for employers to require screening tests of employees for COVID-19. Updated guidance provides that, going forward, employers will need to treat COVID-19 testing like other medical examinations, under the standards of the Americans with Disabilities Act (ADA). Most significantly, this requires that any mandated test be “job-related and consistent with business necessity.”

When COVID Testing Is a “Business Necessity”

The EEOC explained that “business necessity” is met in various circumstances:

To comply with government requirements or guidance – If guidance from the Centers for Disease Control and Prevention, the Food and Drug Administration, or state or local public health authorities recommends COVID-19 testing, then employers’ compliance with those guidelines will be considered a “business necessity.”
Based on likelihood of infection and transmission – This requires employers to weigh the relevance and impact of a range of factors, including: the level of community transmission, the vaccination status of employees, the accuracy and speed of processing various types of COVID tests, the degree of breakthrough infections among employees who are current on their vaccinations, the ease of transmissibility of the current variant, the possible severity of illness from the current variant, the types of contacts employees may have with others in the course of their work, and the potential impact on operations if an infected employee enters the workplace. The EEOC’s guidance does not elaborate on the weight to be accorded to any specific factor, or how many factors need to be present to reach the level of “business necessity,” but it does advise employers to check the latest CDC guidance to determine whether screening testing is appropriate based on the listed factors.
If an individual is exhibiting symptoms in the workplace – On an individualized basis, an employer may require further screening or COVID-19 testing if the employee at work is exhibiting symptoms or an employer otherwise has a reasonable belief based on objective evidence that the individual has COVID-19, and testing would be consistent with recommendations by the CDC or other public health authorities.

The EEOC’s guidance permits employers to require COVID-19 viral screening when one of the above circumstances apply. However, the guidance is emphatic that employers cannot require employees to submit an antibody test (as distinguished from a viral screening test) before reentering the workplace.

Screening Questions Are Still Permitted

Under the updated guidance, other types of less-intrusive screening for COVID-19 remains permissible. Employers can ask employees who are physically entering the workplace if they have COVID-19 or associated symptoms, and whether they have been tested for COVID-19. Employers also can ask employees who work on-site and report feeling ill or who call in sick questions about their symptoms to the extent those symptoms relate to screening for COVID-19.

Those who respond that they are infected or exhibiting symptoms may still be excluded from the workplace, but employers cannot entirely prohibit them from working if remote work is feasible. Similarly, employees who refuse to respond to the employer’s screening questions may be excluded from the workplace.

Screening and Evaluating Job Applicants

Employers may additionally screen job applicants for symptoms of COVID-19 after making a conditional job offer, provided that screening is similarly administered to all employees in the same type of job who are entering the workplace. At the pre-offer stage, screening of job applicants before they come in for an interview is only permissible if the employer screens all individuals, including visitors and contractors, before permitting entry to the worksite.

Given the relatively short period of time required for isolation or quarantine for those who test positive for COVID-19, the EEOC’s updated guidance limits the circumstances in which an employer can withdraw a job offer for an applicant who has tested positive for COVID-19. The employer must be able to show that the job requires an immediate start date, the CDC guidance recommends the person not be in proximity to others, and the job requires that the individual be in proximity to others (it cannot be done remotely).

By Tracey I. Levy