Tiles on a Zoom meeting evoke that wholesome feeling we got when the Brady Bunch squares came on the TV in days before the remote control was nearly a human appendage and virtual work meetings seemed as futuristic as transportation in the Jetsons. But recent horror stories involving remarkably bad judgment displayed in virtual work meetings go beyond anything that offended Jan Brady’s sensibilities.
The pandemic has ushered in a new era of virtual employment-related communication. There are definite pros and cons. On the one hand, these changes have compensated to some degree for the absence of in-person meetings. But, on the other hand, they invite certain serious employment-related risks, including those that may lead to liability as well as those that may pose other undesirable implications, such as a loss of employee morale.
Let’s examine five key issues employers need to be mindful of as they use virtual meeting technology.
First, virtual meetings often open visibility into employees’ personal information, which could potentially form the basis of employment discrimination claims. Of course, employees routinely tie claims of employment discrimination to an employer’s awareness of their protected characteristics, such as their religion, health, age, national origin, and political affiliation (in some jurisdictions).
Consider the virtually unlimited range of information you might learn about an employee through a virtual meeting. For example, you may see in the background: religious symbols or books on shelves; items revealing political affiliation, such as a MAGA hat; and items showing a health condition, such as an IV or insulin pens. You may also learn about an employee’s caregiving responsibilities when kids become interlopers in meetings—which seems almost unavoidable.
Second, claims that employees are discriminated against based on lawful off-duty conduct—e.g., firing employees for using marijuana (in certain states), smoking cigarettes, drinking alcohol or possessing firearms—may arise based on information learned through virtual meetings. This risk can surface where an employee’s screen exposes drug paraphernalia, cigarettes, ash trays, open alcohol containers or a gun rack.
Third, employees may engage in misconduct during virtual meetings that could lead to harassment claims. This is because some employees may approach virtual work meetings with a casual attitude, letting their hair down and making comments or engaging in conduct they would never even consider in a traditional workplace setting. Indeed, misguided employees may feel more relaxed in this setting, thinking they’re not really “at work.”
Such conduct ranges from comments on attendees’ appearances to using foul language to making off-color jokes involving sensitive topics. Likewise, employees may be dismissive of or generally disrespectful to their colleagues in virtual meetings more than they would at the physical office. Plus, they may make untoward statements without knowing (or forgetting) that others are in the meeting if certain participants have not turned on their video function.
This is the stuff of which harassment litigation, or at least complaints to the human resources department, are made.
Fourth, employees may surreptitiously record private meetings. Doing so may violate the privacy laws of certain states, run afoul of the expectations of meeting attendees, and violate company policies.
Last, employees may be apt to engage in embarrassing behavior during virtual meetings, or their family members’ embarrassing behavior may find its way into the meeting. For example, it’s common for employees to dress more casually in virtual meetings, and some may take this to unprofessional levels (use your imagination). And who hasn’t yelled at their kid or pet to keep it down during a meeting while forgetting to hit the mute button?
So let’s be realistic about the fact that the use of virtual meeting technology isn’t going away, even well after there’s an effective vaccine, and it may be time for employers to consider methods of limiting the risks. Indeed, we could be nearing an inflection point where behavior in the virtual meetings to which employees are adapting that may seem just boorish may escalate and start to form the basis of new litigation.
Employer-initiated efforts to minimize the risks may include amending employment handbooks and policies to regulate behavior in the virtual workplace, as well as creating new policies that are specific to the virtual workplace. Such policies could involve topics ranging from dress codes to prohibiting smoking or drinking alcohol in virtual meetings to prohibiting recording of meetings without appropriate approval and/or all participants’ consent. And it would behoove employers to conduct training that includes relatable scenarios and provides best practices.
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