Within hours, the sad story of Jeffrey Toobin became common knowledge. For those of you just emerging from a yoga retreat or a Dodgers-only-World-Series media frenzy, Jeffrey Toobin is (or was, as it remains to be seen what will ultimately happen with his employment status) a legal analyst for CNN and a writer for the New Yorker magazine. Highly respected and knowledgeable, Toobin’s comments on current legal events and issues were often both enlightening and insightful. Until Monday, when Jeffrey Toobin took the occasion of a Zoom call populated with numerous other New Yorker coworkers as an opportunity to engage in an act of self-gratification—on camera. 

We can debate what Mr. Tobin knew or didn’t know--he claims that he did not realize his camera was on--but it is beyond dispute that he knew better. As a legal expert, he was well aware of the #MeToo movement and had written and commented frequently on the subject of workplace harassment. But those that focus on the shocking and titillating behavior of Toobin are missing the point. The Toobin incident is a cautionary tale that illustrates a growing problem in the American workplace that is directly related to the COVID-19 pandemic.

In order to adapt to COVID restrictions required for a business to reopen or stay open, employers must consider allowing workers to work from home to the extent it is possible for them to do so. This means that overnight we have become a nation of teleworkers. More importantly, we have become a nation of inexperienced teleworkers. Worse yet, employers have not prepared for a teleworking workforce and, as a result, most employers have not established teleworking policies or agreements that would help to guide employees in this new environment.

Should Toobin have known that his home office is the workplace for the purposes of a Zoom call? Absolutely; again, as a legal scholar he certainly knew better. But the average employee may not understand where the line is drawn between home and work. By way of example, in the past few months I have dealt with employers who are struggling with employees who have turned the home office into a daycare center, a tavern, a gym, and a business center for other business opportunities. None of these are acceptable uses of a home work space during work hours and all of them could have been prevented with clear guidelines.

As we have previously discussed, a written telecommuting policy and agreement is essential to protect both the employer and the employee. Among other issues, the home office needs to be checked for safety and to reduce workers’ compensation claims. Establishing procedures for the protection of confidential information and trade secrets is crucial for any business. Restrictions on the use of company equipment and communication systems for business purposes only is a must. Finally, employees also need to know the company policies that apply to the home office, including such important policies as the prohibition against all forms of harassment and discrimination, as well as any dress code, hours of work, professionalism standards, etc.

Will a telecommuting policy and agreement prevent other would-be Toobins from engaging in wrongful conduct? Maybe. Will it chart a clear path forward for both the employer and employee in terms of what is and what is not expected in a telecommuting workspace? Definitely. And with clear guidelines comes informed decision making for all those concerned. 

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2020. All rights reserved; yep, all of them.

If you have any questions about this article, contact the writer directly, assuming he or she was brave enough to attach their name to it. If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department.