A seemingly harmless comment on video doesn't mean it's not worthy of discipline or an investigation
With a sudden onset of virtual workspaces accompanying the coronavirus outbreak, there could be a new, emerging threat for employees: harassment from managers and colleagues through the soaring use of online technology.
As more employees use video-conferencing tools or log into social media while working from home, the problem might become more acute, says Samantha Lucifora, a senior associate at Monkhouse Law in Toronto.
“A lot of meetings are now being done over Zoom and so that’s certainly another venue where harassment could take place. Harassment, maybe not directly connected to the workplace, can also pop up in the form of Twitter, social media, LinkedIn, Instagram. It’s not obviously connected to the workplace, but a lot of people are simultaneously on social media platforms while at work,” she says.
“And perhaps even more so because they are in their own home, they feel it’s a bit more of an informal setting and so they might be venting or telling a joke about something in the workplace, but it still could be construed as harassment.”
A potentially troublesome comment that’s conveyed through digital means is no different than an in-person remark, says Lucifora.
“Harassment doesn’t need a physical element or some sort of geographical connection or anything like that. Just because it’s done online over the internet, over a phone call, video conference — whatever the case may be — harassment is still harassment.”
Having a lot of people work remotely tends to create a more informal workplace setting, says Michelle Henry, a partner at BLG in Toronto. That could lead to people being more casual in terms of the comments that they make, such as what a colleague is wearing.
“I don’t think anybody really turned their mind to [this issue] even before COVID.”
Blurred lines between harassment and discipline
Another challenge? Sometimes, a legitimate disciplinary message can be muddied because the way an employer or colleague speaks cannot be accurately conveyed with virtual tools, according to Ian Brown, a partner at BOYNECLARKE in Dartmouth, N.S.
“When you’re dealing with electronic communications, tone doesn’t come across clearly and it’s a pretty broad spectrum for misunderstanding. That’s something that employers and employees have to be very cognizant of — more so in the remote environment than in person — because there isn’t that ability to have that face-to-face conversation where you’re seeing those psychological cues and gestures.”
Sometimes, the line between legitimate criticism of an employee and actual abuse can be difficult to recognize.
“A lot of conflict I see is along those lines, whether it’s legitimate harassment or employee-perceived harassment. It can run the whole spectrum from a situation that certainly needs to be sorted out and discipline is appropriate and other ways where it might be used as a shield because employees who feel pressure to do the work feel it’s harassment,” says Brown. “It’s potentially a big risk for employees both financially and with respect to morale and reputation.”
The best way to ensure a critical message doesn’t veer into harassment is to send a constructive message, says Lucifora.
“It shouldn’t just be ‘You did a poor job on that,’ it should be ‘There was room for improvement.’ There could be the negative feedback but then also ways that that employee can improve because then it changes from just making someone feel bad about what they’ve done but also saying, ‘OK, this is how you can improve in the future.’ There should always be a clear takeaway message for improvement,” she says.
“But if it’s not meeting a sales target, that’s obviously, typically objective because you either meet a certain number or you don’t; that’s ideal when giving feedback if it can relate to some sort of objective measure.”
Being consistent with all employees is also key to providing proper disciplinary measures, says Henry.
“When you show that you’re being consistent in terms of how you treat employees, employees are less inclined to say, ‘I feel like I’m being picked on.’ If you have a bunch of employees doing the same job, there’s certain metrics that they need to meet and you want to make sure that you’re treating employees equally in terms of how you’re evaluating them based on their performance,” she says.
“Try to stay factual, keep your own emotions out of it and concentrate on what are the deliverables that the employee didn’t meet. Then, the employees are less inclined to say harassment.”
Costly mistakes if not properly investigated
The cost to not looking into allegations of harassment can be severe, according to Lucifora.
“From the employer’s perspective, once they learn of harassment, they have a duty to investigate. And a failure to investigate can result in penalties through the Ministry of Labour: up to $1,500, or for individuals with penalties, I believe it can be as high as $100,000. But it can also result in the employee claiming constructive dismissal [and] saying that their implied rights in the workplace were violated,” she says.
“Then they can ask for a severance package. If the failure to investigate is particularly egregious, they can ask for additional punitive and aggravated damages, which is a suggestion that the employer has acted egregiously and not just in failing their employment contract.”
But because the messages are sent digitally, this might help human resources departments when an investigation commences, says Brown.
“In many cases, in an in-person situation where comments are made and maybe people don’t hear it, [with digital tools], there may be a record of those communications that could at least be looked at in terms of appropriateness by an HR person or an investigator.”
Preventive steps include education, policies
Even when social media tools are involved, context is everything, according to Brown, as the comments in question must be job related to qualify as workplace harassment.
“Employers are going to have to take a careful look at their policies. It might be possible where you have a couple of employees communicating about work in Facebook Messenger that isn’t a normal method of communication in the workplace; it’s not your workplace email or it’s not through the regular phone lines and that’s blurring the lines of the workplace.”
On the other hand, “if it’s not connected to the workplace, it’s very difficult to discipline an employee for that, but there’s a need for HR folks to look at their policies and, considering the current environment we are in: ‘What are the preferred methods of communication that we want our workers to be aware of, and how are we going to police that?’” he says.
So, how should HR departments try to prevent potential harassment or disagreements from happening? Education is always key, says Henry, especially in the new normal environment of remote workplaces.
“[It’s about] reminding employees that ‘The same professional standards we expect of you in the office should continue to apply as you work remotely.’ That may be something that [they’ll] have to send through if it becomes more of an issue.”
In the rush to get employees set up from home, this whole issue might be easily forgotten, she says.
“Regrettably, usually training comes after you had an incident in the workplace. And then the employer says, ‘I just realized I haven’t trained my employees in harassment in the last 10 years, maybe I should do that.’”
MANY EMPLOYERS FAILED TO PROPERLY INVESTIGATE IN 2018
Number of women who reported harassment in workplace, compared to 13% of men
Number of Ontario employers cited for violating harassment obligations
Number of instances when employers were cited as failing to follow the law
Source: Statistics Canada, Globe and Mail