HOUSTON—The importance of having clear workplace policies was underscored during the opening general session of the Hospitality Law Conference on Thursday. Attorneys from the Holland & Hart LLP law firm explained how such policies can help mitigate the fallout from issues arising from office romances, drug use and even tattoos.
Office love
Workplace trysts are becoming an increasingly common occurrence, especially as more women enter the workforce, employees work longer hours and wait longer to get married, said Holland & Hart associate Alyssa Yatsko, citing a CareerBuilder.com study.
Legal liabilities arising from such romances include sexual harassment, workplace violence, retaliation, privacy concerns and tort liability, she said.
“It’s not only the legal risk, but the damage it can have to the culture and the reputation of your business,” she said during the session titled “Sex, Drugs Art, and Rock n’ Roll in the Workplace.”
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Steven Gutierrez, chairman of the labor and employment practice group, Holland & Hart LLP |
Steven Gutierrez, chairman of the firm’s labor and employment practice group, said retaliation-related claims are particularly troubling for employers because jurors, regardless of the merits of the case, seem to have more sympathy for the plaintiff in the case. This highlights the importance of following up with the plaintiff to ensure the person is not perceiving any retaliation from the employer, he said.
“If you’re letting that (romance) continue, you’re probably on the hook for monitoring it,” he said. Yatsko also added if an employer lets the romance continue, the employer risks claims from other employees who are uncomfortable with the situation.
Steps to take
Employers can enact “love contracts” between the two co-workers involved in the relationship that the employees both sign, stating the relationship is consensual and does not amount to sexual harassment, the attorneys said. But such contracts can be problematic because employees might not take the contracts seriously.
“I saw some people in the audience snicker at (the mention of the love contracts), and I think other employees would snicker as well,” Yatsko said.
Added Gutierrez: “It’s a contract. What happens if you fail to deliver the love?”
A better approach is to draft policies, not too narrow in focus, prohibiting dating between employees, the attorneys said.
It’s important when such policies are drawn up that employers stick to the guidelines brought forward, they said. “Having a policy you’re not going to enforce is problematic,” Gutierrez said.
Drug use
The use of illegal and prescribed drugs is a big problem for all companies, the Holland & Hart attorneys said. They pointed to a U.S. Department of Labor, U.S. Small Business Administration and Office of National Drug Control Policy study that reported that 75% of illicit drug users are employed.
“Everyone in this room probably has an employee who has a problem with drugs or alcohol,” Yatsko said.
Employers should create clear policies to deal with these issues. However, complicating matters somewhat is the issue of medical marijuana use, she said. For employers that are tolerant of medical marijuana, a policy stating that the company will test only for reasonable suspicion might be acceptable. Those employers taking a harder stance might have a policy that shows pre-employment drug screens and random drug screens will be in effect, she said.
Body art and social media
Written policies also are important when it comes to tattoos and social media, the attorneys said.
Regarding tattoos, the biggest risk an employer runs is running afoul of religious discrimination, Yatsko said. She said in addition to the policy, employers have to make sure management is properly trained on the policy and that management contact HR if they see something that might go against corporate policy.
Drafting social-media policies, on the other hand, can be tricky because of how fast the technology can change, Yatsko said.
“I’m sure most of you have social-media policies and after a year, they were no longer enforceable” because different forms of social media arrived on the scene, she said.
Some items Yatsko mentioned that are important to include in a social-media policy:
• treat co-workers with respect;
• behave professionally; and
• relay to employees that they should have no expectation of privacy when it comes to social media.
“Make sure you stay on top of changing technologies,” she said.