Episode 72: Remote Harassment Investigation Tips

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers General Counsel and Executive Vice President. And today on the podcast, we'll be discussing how to conduct thorough and complete investigations of workplace conduct issues in our new new normal of working remotely. And joining me today is Jennifer Shah of the Shah Law Group. Hi Jennifer, how are you?

Hi, Erica. I'm well, how are you?

I'm doing well. And we always appreciate your expertise and commentary on critical HR issues such as this one, as we all continually evolve with the new workplace norms.

Well, I'm always happy to be here. It's a lot of fun for me, so it's an honor to be here today.

So we know in a matter of days or even hours, for some employers COVID 19 completely and dramatically changed work arrangements and how workplaces operate. Many employees found that their dining room table or their kitchen counter became their new workspace and office space. And gone were the days of in person meetings and interacting with coworkers on a personal level, on a physical level, on a social level. And all of a sudden we are all becoming zoomers and teamers and all the other social networking to conduct meetings. And with that, of course, doesn't mean that behavior stops, right?

No, it sure doesn't. In fact, we have found anecdotally and also through some complaints that we've investigated, that the context actually usually escalates because people have this mis sort of understanding that, oh, I'm at home and my PJs on Zoom, so what I do is it really work related. And they really don't understand that just because you're doing your work remotely doesn't mean those policies don't apply.

So Jennifer, before we start to talk about the subject of today's podcast, which is the employer doing their due diligence and investigating complaints, what are some of the common complaints that you've been hearing about in our remote work environment?

Well, it's been very interesting, to be honest with you. So one of our clients, the office, was on a Zoom call. Her husband, one of the employee's husbands, got out of of the shower, walk down the stairs naked right in front of the camera. So we've had a number of sort of, oh, incidents where there's been some disclosure of private body parts, private things in your house, things you don't really want people to see just by virtue of the fact that people are on Zoom or on GoToMeeting or whatever platform they're using now. We also have seen a bunch of harassment complaints because again, People are sending emails and text messages and joking around in ways that they didn't really get or inappropriate. We have one client where a manager said, oh, bring your favorite sex toy to the Zoom meeting, and you can explain to us, you know, what you think about it, how it works, etc. Like, even as I say it, I can't believe that's true. But it's true. Like, you know, and nobody would have done that in the workplace, but it was like they thought this was a good way to connect. The supervisor actually said to me, well, I thought it would be a team building exercise. Oh, okay, great. Anyway, we got a bunch of complaints and it was a hot mess, as you can imagine.

So, you know, this is a little off topic, but one of the things that I have observed is, you know how all of a sudden, because we're remote, things we used to do in the office, we either can't continue doing remotely or all of a sudden, the rules don't apply. It's just very fascinating that you remove us from the workplace even though all of our work is still being done. We're still collaborating, but just through a different method. Yet for whatever reason, people forget about the rules. And I know a long time ago, we did a podcast on dress codes, and one of your comments is, when you dress up, you work better. You studies that demonstrate that. And I feel in some level that the casualty of being at home, I think, puts blinders on our unintentional blinders on what's appropriate and what's not.

I think that's right. And what happens too, is that people really feel like, you know, talking about dress code, for example, people really think it's okay to be in their pajamas on a Zoom call. Well, you know, it's not. Now, I have to tell you, I've been coming to work in sneakers and sweats even more than I have ever did, because I'm not going anywhere. I'm not seeing clients, I'm not at a mediation, I'm not at a deposition, I'm not doing training, I'm not doing an investigation. So there's definitely been a dress down. And I gotta tell you, I feel a little bit like our standard has gone down too far because we have some people teleworking some people coming in, and people are forgetting, look, it's still the workplace. And by the way, when I say people, I'm the number one violator. So there is this sense of needing to remind ourselves, look, it's still work. Telework doesn't mean that we're not at the workplace.

Yeah. And, you know, we could have a whole separate podcast on employers creating dress code policies for their telework employees.

Yes, we could.

And maybe for another day. But let's talk then about in those situations where you have heard about harassment complaints or inappropriate visual harassment, such as the gentleman or the spouse streaking through the Zoom meeting, the obligation for the employer to conduct a thorough investigation remains, even though we're remote. And I feel like for some employers, all of a sudden, they felt that their hands were tied because they couldn't physically walk down or meet with individuals face to face. What are some things that in some good tips you could provide employers? And how have your clients been handling the remote investigations?

That's a great question. And here's the deal. You're right. A lot of clients have called us saying, well, I guess I can't investigate because everybody's working at home. Wrong. The investigation is just going to be different. You're going to do it over Zoom. You're going to do it over FaceTime. You're going to have a telephone phone call. You're going to have people scan you documents. It's just different. But it does not change the legal obligation. And we have found this in our own practice because we do these neutral investigations where clients have said, well, we want to wait until June or July or August to do this investigation. And I said, no, you don't. This is an issue. You need to investigate harassment. For example, if you wait, it's not going to be a valid excuse to say, I waited because of COVID So we got to get this taken care of. And I think internal investigators are usually in the HR department. They are inundated, Erica. They have so much going on with the new Families First Leave laws, with everything that's happening with Telework, that I think they're almost unconsciously looking for a reason sometimes to not investigate because they cannot imagine adding something to their already very full plate. But I just want to remind everybody it is a legal obligation. It doesn't matter if we're teleworking.

And I think you raise a really good point. As overwhelming as things have been, particularly for the HR personnel out there, there's been so much to navigate through that continues to change.

You know, sometimes it's overwhelming to think I have to do an investigation. And the term investigation seems so formal, but does it always have to be really formal sometimes? Could it just be a phone call?

Well, here's the thing that I think is so interesting. Okay. A lot of clients have these policies where they say, we have an informal investigation process and we have a formal investigation process. The truth is we investigate things every day. Today, Ella was going to ride her horse and she said, I asked her, do you have sunblock on? And she said, yes. And I said, really? And she said, yes, look me right straight in the eye. And I said, well, let me feel your face. So I felt her face not moist in the least bit. I said, ella, your face is dry. You don't have sunblock. Mom, I do too. Like, no, you don't. Go put it on.

Right.

I did an investigation. Now, did I take notes? Did I write a report? No, we do investigations all the time. Okay. I think by the term formal, what we mean is when you get an actual complaint, you have a whistleblower complaint, you have a harassment complaint, and there is a prescribed process in your work for how you deal with those issues where you interview people, you prepare a report, you prepare a separate file. Yeah, you need to do that only in very limited situations. Most of the, quote, investigations we do is simply talking to somebody. That's it.

I think that's such a fantastic analogy and something that folks can remember of distinguishing between, like you said, the, you know, I don't like to call it formal or informal either, but it's more of what are we looking at? What are we investigating? What could be the scope, what's the issue? How many people are involved? It's going to dictate how you're going to go about doing it. And that would be the same even if we were all in the workplace as well.

That's exactly right. Exactly right.

Now, Jennifer, I'm going to throw. Well, there's never hard balls that I throw at you because you always know the answer. But here's something that I was just, here's something I was just thinking, you know, when we talk about, you know, some of the video conferencing platforms, they inevitably have the ability to record.

Yes, true. Meetings or webinars. So in some respect, if there's inappropriate conduct during the recording, you know, there is that evidence available. Is there any privacy concerns with utilizing a recorded zoom webinar when you're investigating a potential claim?

Yes, I think there definitely are. And you certainly just like when you tape record an interview or you record an interview on your phone, you're going to have to get the other person's approval to do that recording. Because California is what's called a two party consent state. So you certainly have an issue with the penal code because there's a penal code violation and also with right to privacy. The other thing, of course, is this. When you record, you do have a record. Now sometimes that's good news and sometimes that's bad news. So the problem is when you have a recording and it comes out in discovery that you've recorded every team meeting you've had since February 28th, with the exception of these six that happen to be the meetings where the plaintiff in the lawsuit is complaining that there was inappropriate conduct going on. Okay, when that happens, you got a problem. Right. Because now you've got a recording and it either looks like you destroyed the recording, which you may have done, or you're going to have to produce it late and it's going to look really bad. So part of this too, I think is this idea of really understanding, look, what's it going to look like if I do record? What is the benefit of recording? And sometimes there's a very strong fit. You know, you think an employee is leaving, you really feel like you need to nail them down. I get all that. But also remember that when you're doing an interview, being recorded as well, and sometimes that's not the best result.

Those are good points and just kind of a heads up for everybody, particularly when you are doing an investigative interview to make sure if you're recording it, that you get the consent from, you know, everybody that's being recorded and, you know, we might not even realize that it was being recorded. So something for. Yeah, just to be cautious about that is definitely a little bit different than when we're in the office. I suppose you could put your cell phone down and say, can I record this? And you would still need to get the consent. But there is a likelihood that it's an inadvertent recording with some of the new platforms out there that just everyone's trying to learn how to use them as we go along.

That's correct. And sometimes there will be a setting where it will be set to record unless you turn it off.

Right.

And so that's situation you're going to be recording but you didn't mean to.

Exactly.

Well, awesome.

Well, I think this was really helpful, or I know this was really helpful. Not think, of course, but some really valuable information to get to our listeners today about reminding them of the obligation to conduct prompt investigations. Even though everyone is extremely overwhelmed and busy. Those are things that we have to continue remembering to do. Jennifer, do you have any last remarks that you would like to leave our listeners with regards to investigations and investigating remote employees.

Well, I think what I would really like folks to think about is their investigation process. What are you doing? I mean, one of the things we've looked at in our firm is this time period has been so weird for everybody. But we've had some downtime to be able to look at some of our processes and procedures and really think about whether we want to make tweaks to them. And I think now is a really good time to do that. So one of the things that I really want folks to think about is what do you do in your regular investigation process? And then let's think about how that applies outside of the regular investigation.

That's fantastic, Jennifer. Thank you. That's a great way to end today. Thank you again, Jennifer, for being a guest speaker on our podcast today. Thanks to all of you for joining us on the Workplace. Thanks. Stay up to date on the most critical issues for employers and please comment, share and subscribe to Cal Chambers Podcast by visiting calchamber. Com.