Approaching the “New Regular” within the Office with the Identical Ol’ ADA

Here’s a phrase I never thought I’d write: TikTok helped me become a better lawyer. It’s true, and not because there is a ton of critical legal thought about the app or because #AttorneyTok has some kind of content of meaningful substance. However, the platform has over a billion users worldwide and many of them (like me) are employees. And what do a billion people sign up on TikTok to talk about? The answer, for better or for worse, is All– but above all their jobs. It is therefore not surprising that much of the content posted on this limitless social media app is in line with the latest trends in labor litigation. According to data from recent filings, remote working-related discrimination lawsuits are on the rise and employers should remain vigilant about ADA compliance to avoid becoming the next defendant.

With claims against employers increasing, a recent influx of TikTok videos about return to work plans and flexible arrangements for remote working caught my attention. One clip stands out in particular: The user sits at his desk at home, where he works remotely and demonstrates with a device that was specially developed for the fact that his computer mouse is in constant motion even when leaving. This, he explains, so that he is not tagged by the software installed on his computer that tracks his keystrokes and mouse clicks, which his employer uses to confirm whether he is working or not. I repeat a refrain that is known to all employers, HR professionals and labor lawyers alike: Miracles never stop. In fact, my Ice Miller colleague Kayla Ernst wrote extensively earlier this year on the legal implications of employee monitoring and has excellent recommendations for employers currently in or considering some form of monitoring.

Make me work from home or I’ll sue you

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