Some of us can still remember when the three-martini lunch was an accepted part of a company’s work culture. Now, that’s unacceptable office behavior for many.
But there are plenty of more practices that have become improper.
“What are some of the things people can’t — or at least shouldn’t — do in the workplace that they might have been able to do 20 years ago?” asks Tracy A. Miller, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart. “Guys — you know who you are — listen up. You should no longer take a female subordinate lingerie shopping — supposedly for your wife — in the middle of the workday; invite a female subordinate on your boat and explain at the last minute that it makes sense to stay on it overnight; or take a female subordinate to a strip club as part of team building.”
The most disturbing part of those over-the-top guidelines?
“Those are just a few personal real-world examples that did not seem legally troubling to me — as an employment lawyer — at the time,” Miller says.
In the wake of #MeToo, #TimesUp, Millennials taking business leadership roles, increased tension between races and genders, and a volatile political landscape, the workplace has changed.
“Workplace humor has undergone a major transformation over the past several decades,” says Emily Johnson, an associate at DLA Piper. “What was once considered office banter is now creating serious problems for employers … Not only is the ‘joker’ potentially creating liability for the employer — and for him or herself — but the laughing bystanders who acquiesce are also problematic.”
“We were just kidding” doesn’t work anymore, experts say. Characterizing the workplace as a “joking culture” has not been a successful defense, Johnson says. And with the changing environment in the workplace, legal experts from Arizona say there are 10 things you can no longer get away with that used to be accepted — or at least tolerated — in the workplace.
1. Don’t use pet names
“‘Honey,’ ‘doll,’ ‘copy boy,’ ‘Psycho Steve,’ or ‘the hot blonde in marketing’ are all examples of terms or descriptions that can be offensive and demeaning — not to mention potential bases for a harassment or discrimination claim,” says Lindsay Fiore, partner at Quarles & Brady.
“Referring to all co-workers by their given name is most appropriate,” says Robert S. Reder, managing partner at Blythe Grace. “While this should be obvious, it often is not and we see numerous employee claims arising out of the use of offensive terms such as these.”
2. Unequal pay
“One of the biggest changes that employers have seen centers around the issue of pay equity,” says Shawn Oller, office managing shareholder at Littler. “Twenty years ago, it was very common for employers to ask applicants how much they made at their previous positions and base their new salaries on their previous salary. Now, that would be a mistake. Over the years, there has been an increased focus on pay equity issues with both Congress and various states taking aim at pay practices that may have seemed fine 20 years ago but, now, can only land employers in hot water.”
3. No touching
“Co-workers should never touch each other,” Reder says. “Individuals may misconstrue what a pat on the arm or a hug means, even if the intent is innocent. Not only may the individual being touched misconstrue the touching, but others in the office may also as well. Keep your hands off each other — particularly when it comes to men touching women. Just don’t do it.”
4. Employee discipline
“Employers should take an even more measured approach when it comes to employee discipline,” Oller says. “The rise of social media puts an employer’s missteps on display in a way that is unprecedented. While many employers may feel time pressure, the adage, ‘Work quickly but don’t rush,’ takes on new importance. Take the time to understand the situation and, if necessary, consult with legal counsel and understand the legal, business and brand implications for your decisions.”
5. No flirting
“It’s important to recognize the difference of isolated workplace flirting and harassment or abuse of power,” says John Alan Doran, a member at Sherman & Howard. “If you’re a boss flirting with a subordinate, you are at much greater risk because you wield implied power and influence even without trying. While #metoo serves an incredibly important social problem, it has also dramatically lowered the bar on what is and isn’t considered harmless flirtation.”
6. Bad judgment on social media
“It might not fall into the ‘having fun’ category, but squarely hits on a driver for #MeToo, #TimesUp and all things Millennial: social media,” says Susan Wissink, director of the Business & Finance Practice Group at Fennemore Craig. “There’s still a lingering notion that Facebook and Instagram are for personal social media interaction and LinkedIn is for professional connections. Unlike when these platforms first launched, you just can’t go around posting believing that a silo exists. There are so many platforms and ways to be found. People look for professionals who use good judgment in how they present themselves everywhere – online and in real life.”
7. Limit drinking
“Most offices now have alcohol available to its employees — perhaps in a break room refrigerator,” Reder says. “Employees must understand that the workplace is a professional environment and not a social gathering. If alcohol is available or served, consumption should be limited to a single drink and even then only consumed in a group setting after all employees involved have completed their work. Enjoying a single drink with a group of colleagues can be valuable for office cohesion, but employers need to control that interaction and create a safe environment for participating employees — specifically an environment free of any specter of harassment.”
8. Don’t overshare
“Employees should not use work email to forward jokes, memes, photos, etc., around the office,” says Lindsay Fiore, partner at Quarles & Brady. “The content of these emails are often problematic in one way or another, leaving colleagues feeling uncomfortable, embarrassed, or pressured to agree something offensive is ‘funny.’ In addition, as electronic discovery becomes more prevalent and even standard in some cases, what employees say to each other and about each other may end up an integral part of litigation – and a basis for liability. Employees should assume that every email they send will be part of the public record of someone’s lawsuit someday. Work email should be used for work only. It’s hard enough to keep our inboxes up to date as is.”
9. Don’t be a comedian
“Many a workplace joke began with some variation of the following set-up: A member of a particular religion, a member of a particular race, and a member of another religion or race walk into a bar …” says Christopher D. Soto, founder of Soto Law Firm. “The punchline to such a joke invariably insulted or played upon religious or racial stereotypes. While in isolation a joke of this type may not create employer liability, if this type of humor is prevalent, it can become a strong contributing factor in determining whether an employer has permitted a hostile workplace environment.”
10. No practical jokes
“Practical jokes used to be prevalent in the workplace,” Johnson says. “Coworkers went to great lengths to top one another’s pranks. Whether it was putting lunch leftovers in a traveling colleague’s desk drawer, hiding office supplies, or temporarily altering office artwork, this type of conduct was far more common at work ten or twenty years ago than it is today. Millennials seem to be particularly prank-averse and unamused by such conduct. Not only can practical jokes be harmful to productivity and morale, but they can also create major headaches for employers when they rise to the level of bullying or harassment. One step too far over the line can be costly. Therefore, perhaps it is best to save the April Fool’s Day tricks for your family and friends.”
Here’s what employers should do to make sure their employees aren’t creating legal issues for the company:
Lindsay Fiore, partner at Quarles & Brady: “Training, training, and more training. Have I mentioned training? Employers should have clear written policies that set appropriate expectations for the workplace, including anti-discrimination and anti-harassment policies and policies outlining employees’ options for reporting concerns. Going a step further and training staff on how those policies apply practically in the workplace is key. Effective training should explain the relevant policies, offer real-world examples of policy violations, discuss challenging situations and how to respond to those situations, and provide employees with an opportunity to ask questions.”
Emily Johnson, associate at DLA Piper: “The key to staying out of legal hot water and ensuring that employees are not creating legal issues stems from company culture. In addition to making certain that handbooks, policies, and training are legally compliant (and effective), employers should take a hard look at workplace culture. Are there proactive and deliberate attempts to make it inclusive? Employers should also recognize that implicit bias exists in everyone and should educate employees about this. Additionally, emphasize the importance of workplace empathy. Consider sensitivity training that can increase awareness of how words and actions can impact others.”
Robert S. Reder, managing partner, Blythe Grace: “Employers should create codes of conduct that apply to everyone in the workplace. That code should be set forth in a formal policy contained in an employee handbook. Of course, every employer should consider purchasing EPLI insurance to insulate them against employee claims.”