Tips from the Other Side: Practicing Employment Law Virtually

By Meghn Droste, April 15, 2020

Much  has changed since our last FELTG newsletter. Many of us are staying at home now and with that, far more employees are teleworking than probably any other time before.  All of this teleworking brings new questions, more challenges, and a lot of differences in how we all work. In light of all of these changes, I have compiled some tips and pointers to consider as you move your practice into the virtual world.

First, before you follow any of my tech suggestions, please check with your agency to ensure that these options are approved and available to you.  Security issues and other concerns vary from agency to agency, and your agency may already have technology in place that can be used to address some of these issues.  For example, if your agency already uses Microsoft products exclusively, you may have access to Teams for meetings and calls, while another agency might rely on Google products and, therefore, have access to Google Meet.  (If none of these terms are familiar to you, I strongly recommend checking with your manager and/or IT team to determine what resources you can tap during this time.)

With that disclaimer out of the way, here are some things you may want to consider to keep your cases moving. One thing that might not change for you much is how often you are on the phone. For those who regularly interact with witnesses, opposing counsel, and others in different locations, you may be used to doing much of your work by phone rather than in person. The challenge may be in how to do so if you do not have an agency-issued phone that you can use at home. I prefer not giving out my personal cell phone number for work calls so I created a free Google Voice account, which gives me access to a local number that I can use through my cell phone. It allows me to make and receive calls without having to give out my regular number.  You might also want to consider using Zoom, Microsoft Teams, or Google Meet without the video option for calls.

And that brings us to the now ubiquitous video chats. It really does seem that everyone is doing them (including some preschool play groups – the one to two-year-old set is now getting in on the fun!). Video calls can seem overwhelming right now, but they can be very helpful for preparing witnesses for depositions or hearings, and for conducting depositions. It’s not the same as being in the same room with the witnesses, but as the Commission has recognized, being able to see a witness can be crucial to gauging credibility. Of course, video meetings can come with some risks. (Type “zoombombing” into your search engine of choice if you don’t know what I’m referring to.)  You can minimize if not eliminate these risks by ensuring that you require each caller to use a password to enter the chat, require the host to initiate the call and individually approve attendees to enter the virtual room, and disable features like recording so that there are no recordings stored on cloud servers.

As state and local governments across the country extend their stay-at-home orders, we may have to address some of these issues in conducting hearings before the EEOC as well. Since 2006, the Commission has prohibited administrative judges from conducting hearings entirely by phone except when circumstances make in-person or video testimony impossible, or both parties request it. If you have a hearing scheduled in the next few months, I encourage you to explore options for video testimony that do not require participants to travel to locations with VTC equipment.

Finally, be sure to take confidentiality concerns into account when you are using phone or video calls to conduct interviews, depositions, and possibly hearings. I know it can be hard to find a private space when everyone is at home, so you may want to invest in a white noise machine or a white noise app for your phone to make sure no one else can hear you as you talk.

Good luck out there and be sure to take some mental health breaks when you can to stay sane during these challenging times! Droste@FELTG.com