With the pandemic imposing new circumstances upon us, harassment investigations for remote workplaces have become increasingly more important. At the beginning of the pandemic, working remotely was seen as a temporary measure and potentially short-term. However, in some workplaces, working remotely has become the new norm.
The transition from in-person to remote work does not change the fact that workplace harassment can still occur. Harassment can come in different forms and does not stop at the type of medium used. In fact, it may be more common now that work has become increasingly remote.
It is critical for an employer to adapt their workplace harassment policies to ensure they extend to online mediums as well. It is also important for employees to be protected from online harassment in the same way they would have been from in-person harassment.
The article below will explain what constitutes harassment in a remote workplace, what an employer should include in their workplace harassment policy, and what an employee can do in the event they are harassed in a remote workplace.
What is Harassment in a Remote Workplace?
Harassment can come in many forms, but it has been given a definition in the Occupational Health and Safety Act (the “OHSA”) as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”. This includes words or acts that would be considered unwelcome by a reasonable person, whether they are made in person or over some other medium.
The OHSA’s definition applies to the remote workplace as well. Harassment takes different forms regardless of the medium. However, it may be more difficult to pinpoint harassment online given that those mediums can be more private. Remote harassment can take place through text, video calls, or phone calls which are private and sometimes done through personal devices. In these situations, it may be difficult to know when workplace harassment is occurring.
Many wrongly assume that because they are saying something or engaging in behavior over remote work platforms that it is not as serious and they have less responsibility to act professionally towards their peers. Examples are wide-ranging for harassment in remote workplaces. What may be intended as light-hearted jokes, or “constructive criticism” over text chats could be considered workplace harassment.
What Can Employers Do About Harassment in Remote Workplaces?
As a result of the pandemic, more workplaces are prone to remote harassment. Many employees now have the option to work from home or they must work remotely. Regardless, employers must place harassment investigations at the forefront of their policymaking and ensure it is tailored to include remote workplaces as well.
An important step to combat harassment in remote workplaces is to prepare a workplace harassment policy that is reviewed at least annually. The policy must be written and easily available for the employees to view.
This policy should be created with consultation from a health and safety representative, a committee, and ideally a legal representative. The policy must include:
- Measures for employees to report workplace harassment incidents to their employers;
- Options to report harassment to someone other than their direct employer;
- Clear details of how these reports or complaints are to be dealt with by the employer;
- Confirmation that the information will not be disclosed unless necessary for the investigation or required by law; and
- Confirmation that the alleged harasser and the worker who has filed the complaint will be informed of the results of the investigation.
The employer has a duty to investigate as outlined in the OHSA where there is an allegation or suspicion of harassment. The employer should indicate that this policy applies to remote workplaces as well as in-person. Accordingly, electronic mediums like Zoom or Webex should be added as places where harassment can occur.
What Can Employees Do About Harassment in a Remote Workplace?
When an employee is harassed in a remote workplace, they should make a written complaint to their employer. If an employer fails to properly investigate or address harassment in a remote workplace, it is typically best to consult with an employment and Human Rights lawyer for legal advice.
Depending on the individual circumstances, there could be a variety of legal options available to a remote employee who is subjected to harassment. For example, if an employee is a victim of texts that are discriminatory or amount to sexual harassment, they may have monetary and non-monetary remedies available to them under the Ontario Human Rights Code (the “Code”). They could seek such remedies by filing a Human Rights complaint with the Ontario Human Rights Tribunal.
If an employer fails to properly address harassment in a remote workplace and the harassment has made it unreasonable for the employee to keep working, the employee may be able to sue their employer for severance and other damages based on a claim of constructive dismissal.
An employee’s award of severance pay could be as high as twenty-four months depending on the terms of the employee’s contract and factors a court may consider relevant. Factors for determining the length of reasonable not or severance pay in lieu include but are not limited to:
- Years of service;
- Annual compensation;
- Nature of their previous position (management, supervisor etc); and
- The state of the labour market and economy.
If you are an employee who is subject to harassment in a remote workplace, an employment lawyer can provide you legal advice tailored to your situation. An employment lawyer can also represent you in negotiations with your employer for your severance and other legal entitlements. If negotiations fail, an employment lawyer can help you navigate and advocate for you in the appropriate legal proceeding to achieve the results you want.
The beginning of the COVID-19 pandemic had employers believing a remote workplace was temporary. However, it is becoming increasingly more common and policies need to be adapted – especially workplace harassment policies.
Employers should ensure their workplace harassment policies are adapted to online platforms and include online mediums as well. Harassment does not stop simply because employees are working remotely. It is important that employers know and acquire the necessary training to deal with remote complaints. Additionally, there is a duty to investigate imposed on the employer which applies to remote harassment complaints as well.
Employees should generally file a written complaint with their employer if they are the subject of harassment in a remote workplace. If the employer does not investigate or properly address the harassment, the best next step is to consult with an employment lawyer to determine what legal options are available.
If you are an employer needing assistance with a harassment investigation for remote workplaces or an employee harassed in a remote workplace with questions about your legal rights, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at firstname.lastname@example.org, and we will be happy to assist.
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