Lawyer Monthly Magazine August 2020 Edition

Keeping the dialogue is important so that employees do not miss out on opportunities had they remained at the office. How can employers remain equally inclusive? One of the tools used by employers for years in getting rid of undesirable employees is by placing them on administrative leave with pay. The employers then fill the position with another and acclimate the staff with the new worker. Then, the hammer falls on the absent employee, terminating him under the at-will provisions. This is part of the “alienation” or separation process. It has worked well for employers. But Covid-19 presents its own debacle. Having employees work from home as part of the across-the-board shut down of the enterprise carries very little divestiture in new opportunities. Where one employee is placed in a perpetual stage of working from home when other employees are called back to work at the office is where litigation ripens. As noted above, any time the employer shows preferential treatment, the decision must have no axiomatic connections to inherent discrimination based on gender, sexual preference, age, marital status, race, national creed, disability, pregnancy, etc. Callbacks to work must be made impartially and certainly without discriminatory or retaliatory preference; it must be neutral in all respects. From a legal perspective, how can employers welcome back furloughed employees? Gracefully. When an employee is furloughed without compensation, there is an estrangement that occurs. The mindset of the furloughed is, “the company does not think I am valuable enough to keep on the payroll during this crisis”. The expendable feelings interfere with the complex nature of the business having to shut down for its own survival. The company, if required to shut down, has no choice in the matter. It furloughs its employees. If it does not keep the employees on payroll, contravening government orders to do so, the employees begin to disconnect emotionally from the company. As every week passes by and the bills begin to mount, the stations of life those employees have grown accustomed to, begin to fade. A certain amount of animosity is levelled toward the employer for the precarious circumstance the employee and his/her immediate family faces. Unless the employee is under written contract for a term period, there is very little backlash to the employer from a legal perspective. A shut down provides a complete defence to a claim of wrongful termination. Nevertheless, the employer must re- engage the returning employee to “heal the wounds” and the frazzled perceptions caused by the furlough, welcoming the employee back with “open arms.” What new challenges have you witnessed over the past few months? The virus did not stop litigation at the arbitral level. The federal and state courts in California closed or were partially operational during the first two months of the virus, only open for emergency How can companies tackle this from home to ensure no one is being discriminated against? With remote working from home, Human Resources (HR) cannot probe deep into the bowels of the home to ascertain if discrimination is occurring. It will have to rely solely upon the employee’s complaint of discrimination or harassment. Using a platformof communication with co-workers to fulfil their job’s directives through Go-To- Meeting or Zoom may provide recordation of video and/or audio transmissions that can substantiate claims of harassment and discrimination. But when dealing with text messages or personal emails (not on the company’s servers), HR’s role in any investigation will be highly dependent on the victim’s report of discrimination or harassment. What steps can companies take to ensure mental health is still being addressed, despite not being in the office? In recent years, companies have been grappling with mental health issues involving employees who exhibit signs of job fatigue (similar to battle fatigue or PTSD) occasioned from job pressures, time constraints, personality clashes with managers and co-workers, and pre-existing deep-seated mental illness. Working from home may dull the sharpness of those mental health issues because the home serves as a haven for each employee: a comfort zone for job place stressors. Over time, working remotely will cause a sensation of isolation and depression. The loss of interaction with co-workers can deepen that depression. Many companies will characterize those issues as short-term in nature believing that repatriation with the company is just around the corner. I doubt that any employer would commit the revenue, in the short term, to advancing the mental health of its remote employees, other than through the company’s health insurance program. FRONT COVER FEATURE - LAW OFFICES OF DALE M. FIOLA 18 WWW.LAWYER-MONTHLY.COM | AUG 2020 Preferential treatment may have a discriminatory flavouring to it that can violate federal and state discrimination statutes.