Workplace romances: Do they ‘Suit’ your company?

November 07, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

Like almost everyone I know, I love the ability to binge-watch television series these days. In fact, it is a rare occurrence that I ever watch any show at the time it actually airs. (This Is Us is a notable exception for me.) Instead, I enjoy delving into these characters’ lives several hours at a time. One such show that I am currently gorging on is Suits, which is in its 7th season and airs on the USA NetwBusinesswoman Receiving Red Rosesork. A fellow attorney recommended this show to me, but I was reluctant at first, as I often shy away from legal programsI have practiced law for almost 20 years and television should be an escape for me, right?!

For those who have yet to watch Suits, the premise is as follows: Harvey Specter is a Harvard-educated attorney at a top Manhattan corporate law firm where every case is high-stakes. He hires a brilliant associate, Mike Ross, who had falsified his background to state that he has graduated from Harvard Law School. The truth is, Mike never even graduated from college, much less law school. However, Mike possesses such a talented legal mind that Harvey keeps him on at the firm anyway. (This “falsification of workplace documents” issue involving Mike could certainly be a topic of a future blog….) While working at the firm, Mike falls for a co-worker, Rachel Zane, who is a paralegal. In her role as a paralegal, Rachel “reports” to Mike on many of the cases they handle. Mike and Rachel begin a relationship, secretly at first. Then, other co-workers at various levels learn about the relationship. While this all makes for great television, workplace romances can create headaches when they pop up in our real workplaces.

So, what can we learn from Mike and Rachel’s steamy relationship on Suits? Workplace romances, especially between persons at different levels in a company, can lead to HR nightmares. Notably, some polls reflect that more than 80% of employees have been involved in, or know about co-workers who have been involved in, workplace dating. So, what’s the issue? The biggest fear (and it is a legitimate one) is that a sexual harassment lawsuit will arise at some point in the relationship cycle, usually after one of the employees ends it. Of course, a valid sexual harassment claim requires the conduct to be “unwelcome.” Accordingly, if the employer can show that the relationship is truly consensual, no harassment claim will succeed. The difficulty, though, is proving that the relationship was truly consensual. That is even trickier when, as is the case with Mike and Rachel, one of the employees is a supervisor and the other is a subordinate. If the relationship goes sour for any reason, the subordinate employee may claim that it was never really consensual to begin with. Further, the employer may also be on the hook for a retaliation claim if the supervisor takes any adverse employment action against the subordinate later.

What can employers do to avoid this drama?

1. Consider adopting an anti-fraternization/“no dating” policy. Some employers fight Cupid’s arrow at work by having a policy in place that prohibits workplace romances, especially in a chain of command situation. These policies are tricky to enforce, though, and some companies simply do not want to invade the private lives of their employees any more than they absolutely have to. Of course, employers can also rely on their sexual harassment policies for assistance: If an employee brings information to HR that a workplace relationship has ended and the employee needs help navigating the fall-out with the co-worker/supervisor, then HR should rely on the harassment policy and remind all involved of the company’s rules and reporting procedures.

2. Consider utilizing “Love Contracts.” Such agreements, executed by the employees involved in the relationship as well as management, confirm that the relationship is consensual, and that the parties agree that the relationship will not negatively impact their performance or the workplace in any manner. Companies often attach their harassment policy to the agreement as an addendum, which makes it difficult for an employee to later claim that he or she did not know how to report conduct that allegedly violates the harassment policy.

Keep in mind, though, that the most important tool (which is already in your toolbox) is the company’s harassment policy. Possessing an effective harassment policy and procedurethat is sufficiently communicated to employees through trainingoften helps to avoid costly litigation when a workplace romance dissolves. For now, I will just keep holding my breath that Mike and Rachel can work through their difficulties and stay together (at least through Season 3, which I am currently watching).

Providing grief relief in age of mass shootings

October 04, 2017 - by: Rachel E. Kelly 0 COMMENTS
Rachel E. Kelly

Las Vegas City SunsetThe headlines rang out early Monday morning as many of us were preparing to leave home for work: DEADLIEST MASS SHOOTING IN US HISTORY. Coffee. IT WAS MADNESS. Toasted bagel. 50+ KILLED, MORE THAN 500 INJURED. Orange Juice. THERE WAS BLOOD EVERYWHERE.

Sunday night at the highlight concert of the Route 91 Harvest Festival, 64-year-old Steven Paddock smashed out two windows in his 32nd floor suite at the Mandalay Bay Hotel and Casino in Las Vegas and rained down terror on the 20,000+ unassuming concertgoers at the festival below. To date, the death toll has risen to 59, with more than 527 injured victims.

Due to the sheer number of those affected, we are all likely to know someone who was in attendance or affected by this tragedy in some way. As the nation mourns with the families of those who lost loved ones, employers are wondering what they can do to assist their employees in the healing process.

Support the grieving process
First, support the grieving process and acknowledge that everyone grieves differently. We live in an era of the 24/7 news cycle. Employees receive news over morning coffee, on the drive into work, and as they check their social media pages for the latest baby pictures. There is no escaping it—the news is everywhere. To that end, create safe spaces at work where employees can discuss their thoughts and feelings. Perhaps it is in the break room or around the water cooler or a dedicated room in the building for talking about tough issues. Wherever it is, embrace the fact that employees will want and need to discuss these issues with their colleagues.

Show you care
If your company lost an employee or had an employee injured in the attack, send a companywide e-mail expressing your condolences and offering your support. Connect with your employees in a positive way, and let them know you have staff, either HR personnel or grief counselors, on standby to assist them in sorting out their feelings.

Get to helping
While it is nearly impossible for everyone in your organization to get to Las Vegas to assist in the aftermath, create opportunities for employees to provide assistance to those affected. Whether it’s a company-sponsored blood drive, food drive, or writing notes of encouragement to first responders or victims, just get to helping.

Ramp up your EAP
If your organization has an employee assistance program (EAP), you’re already halfway there. Remind employees by e-mail that the program is available for their use, and be sure to include the website and telephone contact information. If your organization doesn’t have a standardized EAP, consider implementing one. These programs provide great benefits to employees seeking not only grief counseling but also debt-relief counseling, money management, and lifestyle and fitness management services.

Work on leniency
It’s likely that for the first several days after a national tragedy, employees will be less productive at work. Prepare for this and expect a lag as employees come to terms with what happened.

The most important thing to remember is that the workplace often serves as an extension of an employee’s identity, as it’s at work where some of our closest personal relationships and social interactions are born. Just as employees would grieve and reconcile tragedy in the comfort of their homes, they are likely to bring those issues to work with them. Be cognizant and open to these feelings, and aim to support your team as they wrestle their way back to normal.

Fox News & Bill O’Reilly—best practices for conducting internal workplace investigations

May 01, 2017 - by: Rachel E. Kelly 0 COMMENTS
Rachel E. Kelly

Bill O’Reilly’s reign as a Fox News favorite came to an abrupt end amid a series of sexual harassment allegations against him. After the most recent allegations, Fox News hired large law firm Paul Weiss to conduct its internal investigation.    Employment Incident  Investigation Form

Workplace investigations are tough, and if your organization can’t afford (or simply does not want) to hire a legal giant to handle the internal investigation, there are some key steps to ensure the investigation is fair, impartial, and efficient.

Before we start, you should know there are no clear, one-size-fits-all approach to investigationseach probe must be tailored to the size, structure, and resources of your organization. Even so, organizations often fail to conduct a sufficient investigation by delaying the process, failing to take the complaint seriously, focusing on perception rather than the facts, failing to follow through, and neglecting to document its efforts. By following the tips in this article, hopefully you can avoid these common pitfalls.

First, it’s important to know what kinds of complaints legally require an investigation or when conducting an investigation would provide a defense against later claims:

Getting started

If an employee of your company says, “I need to talk to you…” there are some important best practices:

  1. Ask the person to summarize the issue.
  2. Ask yourself if you are the correct person to speak with the employee about the issue. If you are, then continue the conversation, making sure to document the individual’s concerns. If you are not the correct person, call the appropriate person right away and set up a time for the reporter to meet with the appropriate person.
  3. If you are the person to take the employee’s initial concern, remember that you are not the employee’s friend or confidantyou are an extension of the organization, and information you learn may impute knowledge on the organization.
  4. Be sure to emphasize the organization’s open-door policy and its policy against unlawful retaliation.
  5. Actively listen to the facts of the complaint. Remember, at the end of the day who, what, when, and where are necessary components to a proper workplace investigation. Be sure to take notes. Summarize the facts as told to you and once completed, go back and have the individual read what you’ve written for correctness. If possible, have the person draft a statement and sign and date it.
  6. If you need to, ask clarifying questions, but don’t second-guess or question the individual’s recollection of events.
  7. Finally, at the end of the conversation, thank the employee for coming forward, and state that HR will look into the issue further and determine the need and scope of further investigation.

Investigation strategy

I’ve listened to the complainant’s concerns, now what? After the initial conversation it’s time to develop an investigation strategy.

  1. Consider the need for immediate preliminary action or “pending investigation.” Consider whether the employee or accused will be on some leave of absence or scheduled time off, which will allow time to conduct a thorough investigation. Also, consider temporarily transferring or reassigning employees.
  2. Identify the need for an investigation. Was there a formal internal complaint or grievance? A charge, inquiry, or audit by an administrative agency? If so, these are examples of the types of complaints that companies should take seriously and immediately launch an investigation.
  3. Determine the goals of the investigation. Determine whether there are claims of illegal activity. Was company policy violated? If the alleged behavior continues, will it affect the company’s morale or result in productivity decline? Is the goal to show compliance with the law? Having a clear set of goals for the investigation will help direct you in determining who to speak with and what documents to collect.
  4. Assess the potential disadvantages. Consider whether the cost, time, and resources are worth conducting the investigation. Will the investigation disrupt your organization’s morale or productivity? Will the investigation yield negative publicity?
  5. Select the appropriate investigator. Make sure to select an investigator at the appropriate level given the severity of the allegations. Is the investigator credible? Is she insulated enough from the actors and allegations that she will be able to maintain confidentiality? Does the investigator have knowledge of your organization’s business, policies, procedures, and applicable legal issues?
  6. Identify and interview witnesses. Start by identifying those that must be interviewed, i.e. the accused, anyone the complainant has identified as a confidant, and any witnesses to the claims. Give special consideration to the order in which to conduct the interviews, and what happens if/when the allegations are made public. Consider conducting interviews in a private location that will not disturb the normal operations of the business. Be sure to allot for enough time between interviews, so as to prevent interviewee overlap. For every interviewee, including the complainant and the accused, affirm that the company has not yet made any determination as to the claims.
  7. Identify and gather documents. Collect any notes the complainant made. This may include a journal or calendar of important events. Identify the rules, policies, and procedures implicated. Consider whether to involve IT’s assistance with preserving e-mail, computer hard drives, access cards, and phone logs.
  8. Prepare an investigation roadmap. As you interview witnesses and identify important documents, create a timeline of the known facts and allegations. When interviewing witnesses, determine whether to conduct them in person or by telephone. Also, prepare an outline of questions. Remember the importance of developing who, what, when, and where.
  9. Consider confidentiality and security. Determine whether it’s vital to the conversation to tell the witnesses what the allegations are. If you do share the nature of the allegations, determine early how much you’re going to tell.
  10. Anticipate potential detours, red herrings. Prepare to be surprised.

The thoroughness of your internal investigation matters–not only because it demonstrates that claims against your organization are taken seriously, but because people forget the specifics (and they lie!). Having a well-developed investigation strategy and following our simple, but effective, best practices can help prevent investigation blunders.

Rachel Kelly is a Senior Associate in FordHarrison’s Dallas office. Rachel can be reached at rkelly@fordharrison.com or 214-256-4702.

Hack attacks!

January 11, 2017 - by: Matt Gilley 0 COMMENTS
Matt Gilley

Lately, the news has led with stories about the alleged Russian hacking of various American political organizations, ostensibly for the purpose of influencing the 2016 elections. U.S. law enforcement has surmised that the Russian government orchestrated a number of incursions into networks controlled by the major political parties and that they used or disclosed certain information. You’ll recall the leaks of major Democrat Party and Hillary Clinton campaign e-mails. Now, news reports claim that the investigation revealed the Russian government may have collected compromising information about President-elect Donald Trump.Data-Breach

As with any hacking story, we can’t be sure exactly what’s out there or what’s real. However, we can’t deny that hacking goes on beyond government and politics. Private organizations and businesses are just as enticing to data thieves, and are often softer targets. We have seen prominent data thefts from all industries:  Telecommunications, manufacturing, tech, and consulting are all targets.

Human Resources in any organization plays a critical role in firming up an organization’s data security and cyber defenses. Data security has to take account of both internal threats (from employees and other insiders) and external threats (from data thieves and other hackers who want your information for personal gain or for other reasons). In this regard, Human Resources should assess the following:

  • Do we have safeguards in place to protect against internal data thefts? At a minimum, your employees with access to competitive or proprietary data should have confidentiality agreements, and the organization should have a policy in place to allow for monitoring use of company systems and advise employees that their use will be monitored. Also, walk around your office and see how many people have their passwords stuck to their computer on a Post-It note–any example you find is a weakness just begging to be exploited.
  • Do your people know how to spot threats? Attacks can come from any number of directions. For example, employees need to report suspicious activity, like a fellow employee who shows an inordinate amount of interest in data not related to his or her job. Also, employees often download data onto external storage media like hard drives or USB drives. Is your company preventing or monitoring these kinds of activities?
  • Are your employees easy marks? Hackers today gain access through any number of inventive ways. You need to ensure that your employees are trained to spot and report suspicious behavior like phishing, social engineering, and attempts to introduce malware into your organization’s systems. If any of these terms is unfamiliar to you, you need to get moving!

Training your people is the first way to prevent these attacks, because data thieves see your people as the easiest way into your system.

#Fired: Post a tweet, lose your job

August 23, 2016 - by: Katie O'Shea 0 COMMENTS
Katie O'Shea

Many people enjoy spouting off what they view as 140-character tidbits of wisdom on the social media platform Twitter. But recently several individuals have found themselves in trouble with their employers (read: former employers) for their tweets or other social media posts.  Tweet

One recent example was a loan officer from Michigan who crafted a racist tweet, not worth repeating here, following First Lady Michelle Obama’s speech at the Democratic National Convention. Twitter users saw the tweet and tracked down the home loan company the woman worked for. The result was a flood of tweets directed to the company’s Twitter profile calling their attention to the tweet and asking if the employee’s views represented the company’s values.

One individual tweeted to the company, “you can’t tell me someone who holds this view on the @FLOTUS is not abusing her powers on other minorities.” Others went straight to the point and asked the company, “Will you continue to employ someone who is racist?”

The company saw the tweets and immediately took action by issuing a statement in response on Twitter. The company denounced the woman’s reprehensible comments and stated she was no longer employed with the company. The company emphasized that they do not condone such comments, which were made on the employee’s personal account.

Similarly, a national bank employee lost her job earlier this summer after a Facebook rant filled with racist remarks. The employee’s profile listed that she was an employee of the bank, and social media users immediately began sending the bank thousands of comments about the post. The bank investigated the post and terminated the employee, issuing a statement that they were aware of the reprehensible post on Facebook and the employee had been terminated. In this instance, many customers even threatened to close their accounts with the bank.

The public appeared particularly attuned to this issue given that in 2013 the bank was ordered to pay more than 1,000 African American job applicants over $2 million in back wages and interest after a judge found one of the company’s offices had discriminated against them based on their race.

Even celebrities like Blake Shelton, a judge on the popular singing competition show The Voice, have been called out by the Twitter masses for their tweets. Just last week, the country singer tweeted what some have dubbed a “non-apology” for past racist and homophobic tweets. Some of the tweets in question stem as far back as 2008, proving once again that the Internet never forgets.

With social media, it’s possible for a tweet or post to go viral immediately, and companies must be attuned to their social mentions and quickly take action if problematic posts surface. As with the bank case, delaying an investigation and taking action could cost a company customers and create bad PR.

If a company is considering taking action against an employee for a problematic post on social media, HR should be sure to immediately save or print a copy of the post in question in case the employee attempts to delete it. Employers also should keep in mind that some states might limit an employer’s ability to investigate social media or take action against an applicant or employee based on off-duty conduct.

Of course, employers also must be cognizant of the National Labor Relations Act (NLRA) in analyzing employees’ social media posts. In recent cases, the National Labor Relations Board (NLRB) has found that certain employee posts, and even rants, were protected activity under the NLRA because they pertained to concerted activity and union activity. The NLRB has found that employers violated the NLRA by terminating employees for participation in protected conduct, and has awarded back pay.

In light of these recent tweets, it’s important for employers to evaluate their social media policies and consider how they might respond to an employee who makes a racist, sexist, or otherwise inappropriate remark on a personal social media page. Employers should be extremely careful when disciplining employees over social media posts, however, especially if the posts pertain to conditions of employment. Employers considering disciplinary action or termination based on an employee’s social media post should act swiftly but consult with counsel beforehand.

Andrews and Hogan verdicts demonstrate disgust against invasion of privacy

March 21, 2016 - by: David Kim 0 COMMENTS
David Kim

Just this month, two large jury awards were given to celebrities in their respective civil suits alleging amongst other things, invasion of privacy:

  • First, FOX sportscaster Erin Andrews was awarded $55 million in her lawsuit against a Nashville hotel and stalker after she was secretly videotaped in her hotel room in 2008. The jury found that the hotel chain was 49 percent at fault and held them liable for approximately $27 million.Man Watching through window blinds
  • Then last week, Terry Bollea, known publicly as Hulk Hogan, was awarded $115 million in damages in his invasion of privacy case against Gawker.com over its publication of a sex tape involving Hogan. The Florida jury’s award consisted of $55 million for economic harm and $60 million for emotional distress and doesn’t even include punitive damages, which will have to be established separately.

Although the respective defendants in these two cases still have the opportunity to appeal, the fact remains that these huge awards demonstrate the juries’–and likely the overall public’s–disgust with invasion of privacy. Of course, the salacious nature of these videos, which involve the most intrusive and intimate aspects of an individual’s life, surely contributed to the results. That being said, everyone, including employers, should note the importance individuals place on their own privacy and ensure that one does not unjustly intrude on someone else’s sacred private space.

This doesn’t mean that employees have an unfettered expectation of privacy. Typically, state laws determine privacy rights by determining whether employees have a reasonable expectation of privacy. Therefore, it’s incredibly important for employers to have specific and detailed privacy policies that set forth that certain communications, and information utilized on employer’s computers and servers, can be monitored by their employers so as to eliminate an expectation of privacy about certain matters.

In addition, employers should be aware of any state-specific laws that prohibit them from accessing certain personal information of their employees. For example, approximately 23 states have enacted some sort of social media privacy law, mostly prohibiting employers from requesting usernames and passwords, or other type of access, to an individual’s social media accounts. Of course, exceptions apply in some states, including when employees access their social media accounts at work, and access to pertinent information on such accounts could be discoverable in any pending litigation. As a further example, the Electronics Communications Privacy Act places certain limitations on an employer’s right to monitor its employee’s telephone usage while at work, and certain states require that all parties to a monitored phone conversation receive prior notification of the monitoring.

In addition, employers should ensure they have robust policies and procedures in place, which they follow, setting forth what reasonable expectation of privacy employees can have in the workplace. While the jury awards in the Andrews and Hogan cases are extreme examples, they serve as a warning that the general public takes invasion of privacy very seriously and that a violation could have dire consequences for the offender.

Employment is short. Don’t have an affair.

September 08, 2015 - by: Brian Kurtz 2 COMMENTS
Brian Kurtz

Imagine a guy, a married guy, more specifically an unhappily married guy, and even more specifically an unhappily married guy lacking a moral compass. The guy creates a discrete (ha!) profile on AshleyMadison.com, a dating website for married people whose tagline is “Life is Short. Have an Affair.” No need to prowl hotel bars at last call. Thanks to Ashley Madison, our guy can arrange an illicit rendezvous from the privacy of his laptop. shhhhh

Or not.

As you surely know, hackers last month released a mountain of personal data about Ashley Madison users into the dark web. Those skilled in such things have spent the past few weeks mining that data and have “outed” numerous site members, including celebrities, politicians, government employees, and something called a Duggar. Could things get any worse for our guy?

The answer is yes, specifically if our guy is employed by a church or other religious-based institution. Courts have consistently dismissed lawsuits against faith-based organizations who terminated employees for things like adultery or having a child out of wedlock. An Ohio Catholic school, for example, fired its music teacher for adultery. She filed a gender discrimination lawsuit claiming that her affair was irrelevant to her qualifications as a teacher. A federal court disagreed noting that her Diocese and Parish legitimately believed her sexual conduct was directly related to her qualifications to work at the Catholic school. The Ohio decision is not an outlier.

This may be one of the unintended consequences of the Ashley Madison data dump. Faith-based institutions may terminate employees who created profiles on the basis that adulterous behavior isn’t consistent with the organization’s religion mission. So now our guy is not only unhappy, he is unemployed. Good luck with that, guy.

Workaholics: Drug testing

April 06, 2015 - by: Kristin Starnes Gray 4 COMMENTS
Kristin Starnes Gray

The Comedy Central show Workaholics is currently in its fifth season of depicting a fresh (and hilarious) human resources nightmare week after week. The show is about three recent college dropouts (Blake, Adam, and Anders) who also happen to be roommates and coworkers at a fictional telemarketing company, TelAmeriCorp. To give you an idea of just how mischievous these three can be, their drug dealer/turtle feeder is also a regular fixture on the show. iStock_000003274349_Large

Fittingly, the pilot episode deals with the trio attempting to pass a company-wide drug test after a day of partying. Their shenanigans include, for example, bribing a middle school boy with fireworks and ninja stars in exchange for clean urine. When this plan goes awry (I won’t give away the messy details), the group decides to accept their  fate and take the drug test. Blake, however, finds inspiration from the film Die Hard and decides to contaminate ALL the employees’ samples before escaping just in the nick of time. Shocked to find that all TelAmeriCorp employees failed the drug test, Alice Murphy (senior sales associate and boss to our oddly endearing–though often disgusting and misguided–trio) relieves the drug tester of his duties. Blake, Adam, and Anders celebrate only to learn that the company has planned a hair follicle test.

Hopefully, you don’t know anyone who has taken a page from the Workaholics playbook for handling a company drug test. As employers are well aware, illicit drug and alcohol abuse can be costly in the workplace, and drug-free workplace programs can be powerful tools for spreading prevention messages and intervening early with those who have begun to use drugs. In my Christmas-themed Elf post, I discussed some general recommendations for such programs. In addition, there are many important legal considerations for employers, including the following examples.

  • Defamation. Revealing drug testing results, or simply revealing the basis for a suspicion of drug use, could be grounds for a defamation claim. Policies should minimize this risk by strictly limiting access to drug test information on a “need to know” basis, limiting statements to objective fact, obtaining a release, requiring follow-up confirmation testing, safeguarding the specimen (especially from Die Hard fans like Blake), using a reliable lab, and using split samples so employees can have a sample tested at their own expense.
  • Disability Discrimination. Although the Americans with Disabilities Act (ADA) does not protect current illegal drug users, both alcoholism and drug addiction are protected disabilities.  Employee misconduct caused by addiction is not protected by the ADA, however.
  • Adverse Impact.  If an employer’s policy or practice, such as disciplining or terminating all employees testing positive for drugs, adversely affects the employment opportunities of a class of employees protected by statute (such as minorities), the policy or practice may be challenged as discriminatory.
  • Employee Privacy.  There is no federally created right of privacy for private-sector employees. The federal prohibitions against illegal searches and seizures apply only to governmental action. Many state constitutions or statutes, however, contain a right of privacy that may limit certain drug testing methods or the circumstances under which an employee may be subject to drug testing. Employers should check the laws of the states in which they have employees before implementing a drug testing policy.

Unfortunately for our Workaholics, many state laws make it unlawful for any person to attempt to defraud any lawfully administered test designed to detect the presence of chemical substances or controlled substances. For the time being, our trio has escaped to bring us more cringe-worthy office moments, laughs, and potential blog material. So tell me your favorite episode and why it should appear in an upcoming blog post.

Breaking Bad: Disciplining employees for off-duty conduct

October 06, 2014 - by: Marilyn Moran 1 COMMENTS
Marilyn Moran

You can hardly get through your morning coffee these days without seeing another story about some athlete, model, or actor who abused his wife, trashed her Beverly Hills hotel room, or went all shutterstock_180348752Archie Bunker in a racist Twitter rampage. Usually, high-profile celebrities are bound by employment contracts that require strict adherence to an impeccable standard of personal conduct. But what can the average employer do if Walter White, the usually quiet and docile chemist with a spotless work history, decides to break bad over the weekend, uses his RV for a meth lab, and has his mug shot splashed all over the news? Like so many legal questions, the answer is “it depends.”

Generally, under the at-will doctrine, employees can be fired for any reason, or no reason at all, as long as the reason is not illegal. Unfortunately, deciphering whether a reason is “legal” or “illegal”  is not as clear as Walter’s blue crystal. Obviously, it is illegal to discipline or terminate an employee based on the employee’s race, religion, or sex, but most off-duty conduct lies somewhere in the gray area. Until recently, most employers did not give a second thought before disciplining an employee for off-duty criminal conduct, but the Equal Employment Opportunity Commission (EEOC) has loudly condemned the practice. According to the EEOC, some racial minorities are disproportionately more likely to be arrested or convicted of criminal offenses than others, so the agency is critical of employment policies that universally disadvantage applicants or employees based on past criminal conduct.  As a result, the safest bet for disciplining employees for off-duty conduct is to focus on the job-related consequences of the behavior, rather than the behavior itself.

For instance,  it is safer to discipline an employee for unexcused absences incurred during a jail stint than to base the discipline on the underlying arrest. Likewise, while a bank would be justified in terminating a teller who has been convicted of writing bad checks because the teller is in a financially-sensitive position and handles customers’ money, the decision to terminate a janitor for the same reason would be less defensible because the off-duty conduct has no relation to the janitor’s job.

What about noncriminal conduct that carries a social stigma? Can you fire an employee who is caught cheating on her husband or has a second career as a porn star? What about someone whose Internet comments and Facebook posts are littered with racial slurs? Before doling out discipline or dusting off the pink slip for such behavior, you need to answer these questions:

(1) Has the employee’s off-duty conduct negatively affected his or her job?

(2) Has the employee’s off-duty conduct impaired the morale of your other employees or caused a disruption in workplace productivity?

(3) Has the employee’s off-duty conduct gone against your company’s stated mission and values?

If you can answer one or more of these questions in the affirmative, it is likely that disciplining the employee for his or her off-duty conduct will be legally justified. Still, to avoid a wrongful termination claim, you should document the reasons for the employment action with specificity and describe how the employee’s off-duty conduct negatively affected your business. Additionally, if you treat employees differently for engaging in the same conduct, such as in the example above involving the bank teller and the janitor, you need to articulate a legitimate business reason for the disparate treatment.

Bottom line: As employers, there may be occasions when you want to discipline employees for off-duty misconduct. To avoid liability, you should be ready to explain how the employee’s personal behavior had a negative impact on your company’s bottom line.

Learning from tragedy–depression and mental health in the workplace

August 17, 2014 - by: Josh Sudbury 2 COMMENTS
Josh Sudbury

This past week, the entertainment world lost one of its best and brightest to an apparent suicide. Robin Williams, who brought laughter to so many for so long, took his own life at the age of 63. So much has been written about his talent over the past week that it’s difficult to understand or accept how such a thing could have happeneshutterstock_198363611d. But, Robin Williams’ tragic death is a reminder to all of us of the very real and very serious presence of anxiety and depression in our daily lives regardless of whether we ourselves or a close friend or family member suffers from these afflictions.

Just as much as depression can affect our home and family lives, it also has a serious impact at work. In 1995, the National Institute of Mental Health estimated that as many as 1 in 20 employees was suffering from depression. So, count how many employees work for your company and do the math. If you are a company of any size, it’s likely that at least one or more of your employees may be dealing with his or her own depression or that of a family member.

Depression may manifest itself in any number of ways, including decreased productivity, morale problems, lack of cooperation, safety risks and accidents, absenteeism, complaints of being tired all the time or of unexplained aches and pains, and/or alcohol and drug abuse, just to name a few. These symptoms can be present periodically or persistently. And the threat may not be only to productivity but also to the safety of the individual and his or her coworkers.

But, you may be asking yourself, “what’s an employer to do?” It’s highly likely that neither you nor the members of your management team are properly trained mental health professionals. It would be much more appropriate for your company to establish an Employee Assistance Program (EAP) to help employees with personal problems that can affect their well-being and work performance. An EAP can provide counseling or treatment to assist employees (and their family members) with issues such as (1) substance abuse, (2) financial problems, and (3) emotional distress, among others. Employers offering an EAP should be sure to communicate to employees that treatment is confidential (unless an EAP counselor is legally required to disclose information such as child abuse) and won’t become a part of their personnel records.

Even if you have an established EAP or other similar program, you would not want your management staff going around asking every underperforming employee whether they are suffering from depression. Rather, the important thing is to train supervisors to spot performance and morale issues when they occur and report them to the appropriate individuals, either within management or human resources, so the company can address the situation appropriately.

Once the appropriate company representative is notified, he/she can approach the affected employee in a way that doesn’t encroach upon the individual’s privacy while offering an opportunity to get the needed help. The best way to do this is to approach the situation with a focus on the employee’s particular performance deficiency. For instance, the supervisor could say to the employee: “I have noticed you’ve been coming in late more frequently and that the product of your work has not been up to par. I do not know if this is the case for you, but you should know that if personal issues are affecting your work, the company offers an assistance program you can contact confidentially,” as opposed to saying, “You seem depressed. Is something wrong?” In addition, if the employee comes to a supervisor and talks about mental health problems, the supervisor should listen but not try to diagnose, and should recommend that the employee seek help from a professional regardless of whether the company has an EAP.

Though it may be difficult, it is important to address the signs and symptoms of mental illness in the workplace as they appear. Establishing an EAP or similar program is one way to provide help to your employees when they most need it and may improve the overall safety of your workforce.

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