The many iterations of ERA determinations in recent decades have resulted in a difficult compliance landscape for employers to navigate when conducting employment hearings. Most recently, the Authority determinations have demanded strict regulating compliance for qualifying conduct, and included specific requirements employers must adhere to when conducting these hearings. While most employers do their best to provide a proper, safe hearing process, there are some common missteps that occur. As an experienced employment solicitor, I encounter these issues frequently and try to avoid the issues explored below.
1. Notices to Parties
It is critical that the Notice provided to the parties in an employment matter includes everything required by law and policy. Employers also sometimes forget to include the date of transmittal on the Notices to the parties. Employers also sometimes put the incorrect policies in the Notices. This is particularly important to get right, as parties cannot adequately understand the allegations and potential policy violations without the proper policy lens the facts will be analyzed through.
2. Inconsistent Application of Policies
Inconsistent application of the policies occurs most frequently when employer do not strictly adhere to the policies currently in place. This causes confusion for not only the parties, but for all individuals who are involved in the process.
To that end, it is helpful when employers can minimize the time gaps in their control. For example, employers can either have an Adjudicator, or a panel of Adjudicators, they regularly use so as to minimize the time spent searching for an Adjudicator in each case. They can also ensure they communicate with parties as soon as possible after receiving final investigation reports or Hearing decisions.
Additionally, if policies are not clear as to how questioning will work during a Hearing, how witness testimony will be handled, and/or the timeline for the Hearing Decision, it is helpful if employers can develop written procedures they can distribute to the parties prior to Hearing Day. This provides some predictability and certainty for the parties and helps ensure Hearing Day runs smoothly.
3. Zoom Issues
Employers are not alone in occasionally struggling with Zoom technology. Our experience has shown it is most helpful when employers take the following steps prior to a Hearing:
· Turn off the chat feature so parties cannot send private or public messages during a Hearing. We have seen some parties write inappropriate comments using the chat feature, parties attempt to communicate directly with the Adjudicator, and parties transmit to the group something they intended to be private to their Advisor.
· Utilize the breakout rooms and the waiting room. This helps ensure one party and/or one witness is never left alone in the main room with the Adjudicator. Additionally, breakout rooms give parties a chance to consult privately with their Advisors, or just decompress outside of the main hearing room.
· Give witnesses a window of time so they are not stuck in the Zoom waiting room for hours. While it can be hard to predict a precise testimony time, it is helpful to ask witnesses to be available for a particular one- or two-hour window. It is also critical that the Hearing Coordinator has the ability to communicate with witnesses quickly on hearing day, should testimony times change. This shows respect to the witnesses’ time and helps ensure a more orderly hearing day.
· Stay off camera if you are not a party to the Hearing. Not everyone needs to be on camera during the Hearing, including business administrators. However, if employers choose to keep their camera on for the duration of the Hearing, they should be mindful of how they are coming across and whether it is evident if they are not paying attention.
Employment hearings are complicated and ever-changing, and it is difficult for all of us to keep up with the different requirements. As an experienced Employment solicitor, I am ready to help you navigate this difficult landscape to ensure a smooth, procedurally proper, and respectful Hearing.
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