Workplace Investigations During COVID-19: The Show Must Go On
Unfortunately, the societal ills of workplace harassment, discrimination, and retaliation can be expected to continue during and after the COVID-19 emergency. Investigating worker complaints remains extremely important during the upheaval brought on by the pandemic. Failing to properly investigate complaints negatively impacts worker morale and exposes employers to liability. As discussed below, workplace complaints must be promptly investigated as usual.
Employers should anticipate that workers will complain about alleged misconduct that occurred before the COVID-19 crisis. California law generally allows workers to take legal action up to three years after alleged discriminatory, harassing, or retaliatory conduct occurs. It is not uncommon for workers to delay making complaints for various reasons. Regardless of when workplace complaints are made, employers are required to promptly investigate. None of the COVID-19 related emergency laws excuse an employer’s legal obligation to promptly investigate complaints. To the contrary, the U.S. Equal Employment Opportunity Commission and California Department of Fair Employment and Housing posted statements on their websites reassuring the public that those agencies would continue to enforce civil rights laws during the COVID-19 crisis.
Workers should also be expected to complain about alleged misconduct that is happening in the new “work from home” environment. Face-to-face contact has never been required for conduct to be considered unlawful. Discriminatory, harassing, and/or retaliatory conduct commonly happens via email, text, and other messaging apps. Workers are now working from home under less direct supervision, are almost completely dependent on electronic communications, and have more opportunities to engage in online misconduct. Employers have always been obligated to investigate complaints about virtual misconduct and must continue to do so during the pandemic.
Employers should also expect to receive increased complaints about alleged misconduct towards workers who are Asian or Asian-American. The pandemic’s widely-publicized origins in China has led to increased reports of harassment against individuals of Asian descent in the United States. EEOC Chair Janet Dhillon issued a message denouncing such harassment and urging employers “to be mindful of instances of harassment, intimidation, or discrimination in the workplace and to take action to prevent or correct this behavior.” The California Department of Fair Employment & Housing similarly issued guidance reiterating the Fair Employment & Housing Act’s prohibition on national origin and race discrimination and harassment, and reminding employers that they “must take reasonable steps to prevent and promptly correct discriminatory and harassing conduct in the workplace.” Employers should be especially mindful of their obligation to promptly investigate allegations that workers of Asian descent have been treated differently during the pandemic.
Workers who fall into populations that are more vulnerable to the risks of COVID-19, i.e., workers who are older or have certain medical conditions, may also complain about discrimination at higher rates. Employers may have legitimate desires to protect those employees from potential exposure to the virus, and some local orders even appear to expressly require older workers to be excluded from the worksite. However, treating employees in protected categories differently than their peers may run afoul of federal and state anti-discrimination statutes. The EEOC’s guidance states that employers cannot unilaterally postpone start dates or withdraw job offers from individuals who fall into high-risk categories for COVID-19. Complaints about employment actions that disparately impact employees in protected categories should be promptly investigated.
The pandemic has created some logistical challenges to investigating workplace complaints. However, those challenges can be overcome and should not be used as an excuse to not conduct a prompt and thorough investigation. Employers should exercise flexibility in how investigations are conducted during the COVID-19 emergency, while balancing the needs to promptly and thoroughly investigate complaints. Although millions of workers – including relevant witnesses – have been furloughed or laid off during the pandemic, reasonable efforts to interview former employees and employees who are on leave are still required for investigations, depending on the circumstances and dictates of common sense. For example, a worker who is hospitalized with COVID-19 should be allowed to recover before being interviewed as part of an investigation.
Likewise, investigations can and should be conducted remotely for the safety of all parties involved. Prior to the pandemic, in-person meetings were considered the preferred method for interviewing witnesses, based on the belief that face-to-face contact builds rapport, which in turn encourages witnesses to speak freely, especially when discussing highly-sensitive matters. However, today, in-person meetings are not recommended due to local and state social isolation orders and social distancing practices. Investigators should make all reasonable efforts to interview witnesses remotely. Video conferencing is a very good substitute for in-person interviews, and allows for face-to-face establishment of rapport, especially as videoconferencing apps such as Zoom become more commonplace. Employers should seek out investigators who have experience with video interviews and are comfortable using that technology.
Investigating worker complaints may not seem like a priority during a pandemic, but conducting prompt, impartial, and thorough investigations is essential for maintaining a safe and healthy workplace.