A friend sent me an article about a woman who claimed that she was terminated from her job because her kids were heard in the background of her teleconference calls when she was working from home due to the pandemic. She has retained a lawyer and is suing her employer, claiming gender discrimination, retaliation, gender harassment, intentional infliction of emotional distress, and wrongful termination (this happened in California).
Now that many employees are working from home, it would seem that this is not an isolated situation. So can an employer terminate an employee because her children are heard (or seen, in the case of video) in the background of work-related calls without exposure to liability in a lawsuit? It depends. We need to look at two important factors: expectations and consistency. And we will throw in a bit of flexibility.
Expectations: As a general rule, an employer can require its employees to conduct themselves in a professional manner. To that end, the employer should communicate its expectations to employees so that everyone is on the same page. If an employer suddenly finds itself with many employees working from home rather than in an office, that employer should put its expectations of those remote workers in writing. This can be in the form of an email or a more formal policy, but it can include things like making efforts to keep extraneous noise—kids, dogs, TV programs, heavy metal music—out of work-related calls. No cats walking across keyboards in the Zoom calls. No inappropriate photos in the background of Zoom calls. Another item to include would be guidelines for timekeeping and working hours. This is an important issue especially for employers who have non-exempt workers that are telecommuting, and could be a subject of a blog post of its own.
Consistency: An employer should be consistent in its treatment of employees who violate its policy or fail to meet its expectations regarding professional behavior. If an employer disciplines the female employee for having her children make noise in the background of business calls, but it does nothing to the male employee who has a barking dog in the background of business calls, that could be considered gender discrimination. In other words, if the employer does not not want extraneous noise disrupting business calls or videoconferences, it should be consistent in the treatment of all employees who violate this policy.
Flexibility: In these challenging times, it also doesn’t hurt for an employer to show some flexibility. With schools not in session and day care options limited by the pandemic, many employees have young children at home with them while they work. If a parent asks to schedule a conference call during the time that their child is napping in order to minimize disruptions, the employer should make an effort to work with them on this type of scheduling.
However, if clients or customers make complaints about an employee’s lack of professionalism in their audio or video conference, the employer should document those complaints and follow up with the offering employee. Complaints may also come from other employees. I wouldn’t recommend terminating an employee for a first offense, but if the lack of professionalism continues despite counseling and warnings, an employer does have the option of termination. If the employer has been clear in its expectations and consistent in its treatment of employees for similar behavior, this will help to minimize its potential liability if the terminated employee decides to file a lawsuit.
Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at firstname.lastname@example.org.
©2020 Kathleen J. Jennings
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