The Birds and the Bees

May 2015

By: Walter J. Liszka, Esq.

In springtime, it is a very good time for employers to give consideration of how to manage “office romances” and avoid potential liability that may result from them.  Remember that in the current and constantly changing work environment, these “office romances” may not just involve the traditional male and female (they may involve two members of the same sex), but all office romances must be treated the same way.

Over the large number of years that the author has practiced labor and employment law, I have seen numerous employers attempt to eradicate this problem of office romances by an outright ban on those relationships.  In my experience in any workplace, “office romance” relationships are inevitable, regardless of the policies of the employer.  To have a policy that outright bans these relationships is not only unrealistic but totally ineffective – such policies merely force the employees to go “underground” and hide their relationship and lie to their employer and fellow employees to cover their tracks.  This leads to a less productive and unhappy workforce.  If you have a policy banning any relationships, once you as the employer become aware of these relationships (rest assured that your employee staff has been aware of the relationship for a lengthy period of time prior to your knowledge), you have to turn around and fire both employees.  If you do not fire them, you give the clear impression that “you pick and choose” when to enforce rules – never a good impression for your employees and a potential morale killer!  This is a completely backward situation and must be avoided.  

Here are a few suggestions for dealing with “the birds and the bees”:

1. Rather than banning the workplace relationships, establish a policy that encourages employees to disclose these office relationships but prohibits them when there is a supervisor – subordinate relationship.  Once the workplace relationship is disclosed, the employer can make very clear to the involved employees how they are to behave in the workplace (leave personal issues for non-work hours; no public displays of affection in the work place; etc.). Once a relationship is in fact disclosed, there are potentially heightened legal risks – potential sexual harassment claims if the relationship should go south or complaints from other employees with regard to perceived favoritism especially in supervisor-subordinate situations.  As a result, the employer must view its workforce needs to determine if a transfer or schedule change for either or both employees is appropriate.   If such an accommodation cannot be made, the involved employees should be advised that they will have a brief period of time to determine who is going to stay and who is going to leave.  Such drastic action is necessary because if a relationship between a supervisor/subordinate goes south, there is an absolute liability for the employer with regard to any and all actions taken by the supervisor vis-à-vis the subordinate.  This will enhance any sexual harassment claim because the employer will be held strictly liable for the actions of its supervisor.
   
2. The author first became aware of this concept arising in the State of California – no surprise.  Some employers may want to take the additional step of requiring the involved employees to enter into a Consensual Relationship Agreement or, as brought to the attention to the author in California, a “love contract.”  The aim or intent of the “love contract” is to create additional evidence to limit the employer’s liability in the event that the romantic relationship sours.  It is somewhat analogous to a prenuptial agreement but, instead of dividing the marital assets ahead of time, it protects the employer and provides that if or when the relationship goes south, neither employee will blame the company and further establishes that both employees acknowledge that their relationship is voluntary and without any type of coercion or duress.  It also requires them to agree that they will not engage in any conduct that will affect their work performance and/or obligations to the business (it is a good idea to also put in that if, in fact, their work performance or obligations to the employer are affected by the relationship, they are subject to discipline).  Also remind them of the company’s anti-harassment and anti-discrimination policies (it is suggested that these polices be set forth verbatim in the “love contract”).  While the author is not convinced that an arbitration clause is appropriate for the resolution of any all problems arising under the love contract, I give deference to the employer regarding this matter.

In closing, I strongly recommend that all employers consider polices that require full disclosure of personal romantic relationships and, just as importantly, update their anti-discrimination and anti-harassment policies to cover this situation. 

 

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com. 

Domestic Violence and Child Abuse - A Problem for All of Us

September 2014
By: Walter J. Liszka, Esq.

Certainly the last few weeks have not been very pleasant for the National Football League/Roger Goodell and for the Federal Judiciary. The NFL has had to deal with domestic violence/child abuse involving its stars (Adrian Peterson, Ray Rice, Jonathan Dwyer, and, thanks to Gloria Allred, Brandon Marshall from a 2007 incident) and the Federal Judiciary has had to deal with the spousal abuse of United States District Court Judge Mark Fuller, an Alabama Federal Judge, who took a plea deal for beating his wife in August. While the drumbeats have been extremely loud for Commissioner Goodell to resign and for Judge Fuller to give up his lifetime appointment as a Federal Jurist, all of these cases point to the fact that no one and no employer can fully insulate itself from the scrutiny and polarizing beliefs if someone is accused of domestic violence/child abuse.
 
While one can critique the actions being taken by the NFL/Goodell and the Federal Judiciary as an "armchair quarterback with 20/20 hindsight," every employer should recognize the fact that, but for the grace of God, that could be you and your company. What should an employer do to be proactive in this arena? While there are no short and easy answers to this situation, there are some ideas for consideration.

What if your employee is the victim of domestic violence?

• If you do not already have one, adopt a policy on domestic violence and encourage your employees to get help. A Human Resource Department would be a wonderful locus to house information about community resources for domestic violence victims (shelters, family counseling, social and legal services). This information can also be posted on the company intranet and bulletin boards. Check to see if the medical plan can provide or is providing an employee assistance program.
  
• Become familiar with state laws and the rights of domestic violence victims. Does state law where you operate provide protection for the individual who must miss work because they are the victim of domestic violence?
  
• Be supportive and encouraging to the involved employee and provide legally required time off and, in some cases, voluntary and over and above legally required time off for the individual to make court appearances, get medical treatment, seek out counseling, and deal with all the other factors with which the domestic violence victim is dealing.
  
• Ask for permission from the employee abuse victim to communicate with his/her fellow employees to provide support and to "pitch in" to get the work done. This can be (will be) a positive morale booster!

What if your employee is the one responsible for or accused of being the perpetrator of domestic violence?

• Do not automatically assume that you can just fire that individual for being involved in this type of activity while off-duty. They may not be guilty - it is commonly known that domestic abuse allegations sometimes arise as part of leverage in divorce or child custody proceedings. Secondly, even assuming the individual is guilty, an employer may be subject to being sued for a questionable discharge, unless you can show that the abuse has a clear connection to the work environment. For example, if the victim of the abuse and the perpetrator both work for you, it might be much easier to establish a connection to the work environment and allow a "quick termination."
  
• Communicate and enforce your existing policies allowing for termination against threatening, abusive or violent behavior in the workplace.
  
• Also remember that if the individual is involved in some off-duty activity, failure to report to work in violation of an attendance policy or, in the alternative, failure to call in to notify an absence may be a valid basis to terminate.

No one knows where all of the answers are to this vexing problem. But one thing is very clear - no employer is immune to scrutiny if domestic violence/child abuse rears its ugly head!

Questions? Contact Managing Shareholder, Walter J. Liszka of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com

Employer Lessons from Donald Sterling

May 2014
By: Walter J. Liskza, Esq.
 

There are very few, if any, individuals who are unaware of the well-publicized recent scandal involving Los Angeles Clippers owner, Donald Sterling. Certainly, Mr. Sterling's unfortunate comments have resulted in unprecedented penalties from the NBA and, in all probability, are the result of the very enflamed situation that grew from a bonfire to a forest fire within a few hours. Regardless of the circumstances of the Sterling scenario, there are lessons to be learned by all employers and management from this situation. Clearly, the actions and comments of employers, owners, and management, whether directed to employees or others, may have dire consequences for a business. Here are five practical tips for all employers to consider to avoid the "Donald Sterling motif."

• Sound Discrimination/Harassment Policies.

Having a well-crafted, clear and comprehensive Discrimination/Harassment Policy is a central defense for all employers in any scenario. Specifically, these policies should have clear and definitive guidelines for reporting discrimination/harassment to immediate supervisors or alternative reporting authorities if the immediate supervisor is the alleged culprit. These policies should be clearly communicated to employees with distribution to all newly hired employees and clear documentation in policy manuals or postings at a facility. It might also be appropriate for employers to seriously consider the implementation of a Zero Tolerance Policy for any form of discrimination or harassment. This is a factor that is related to a company's culture and should not be implemented without consideration that a Zero Tolerance Policy requires a person found culpable for discriminatory or harassing treatment to be immediately terminated.

• Training of Workforce.

Even with a very well-drafted employment policy, it is absolutely necessary that all employees - from senior executive to entry level employees be trained on the importance of the Discrimination/Harassment Policy and that everyone be clearly advised that this type of behavior will not be tolerated. It is also important that in these training sessions, there be a clear and consistent goal of treating all employees, whether by ownership, management, supervision or employee-to-employee, with dignity and respect.

• Call to Action.

When a complaint is filed, it is extremely important to send a very clear and consistent message that any and all allegations of discrimination, harassment, or inappropriate conduct is taken seriously. These matters must be completely and thoroughly investigated and swift and decisive action taken if the complaint proves to be accurate. It is an absolute necessity that the complaining party be advised as to what actions are being taken. This sends a clear message that valid complaints are dealt with and employees' rights are protected. 

• Technology Issues.

Do not stick your head in the sand and assume that no one will record a conversation! In the current environment, with the advent of Smartphones and other expanding technologic gadgets, if you believe that "no one will ever record a private conversation," you are truly dreaming. In fact, most states permit the recording of a conversation if only one party has knowledge and consents to the recording. In the State of Illinois, the Supreme Court recently declared unconstitutional a very protective eavesdropping statute so; no one has to consent to a recording being made in Illinois. The "protection of law" is a big fallacy with regard to recording conversations, whether public or private. I am reminded of an old adage that I have used throughout my career - if you would not say it to your wife or your daughter - do not say it all!

• Respectful Employee Relationships.

Employers must maintain an open door policy to allow employees to raise concerns and feel confident that those concerns will be addressed in an appropriate fashion. Listening to your employee concerns will undoubtedly improve employee morale and, just as importantly, allow you to identify negative issues before they impact the business. It will also remove the desire of an employee to "get the boss."

The Sterling scenario should force all employers to take a look at their employment policies and to take measures to improve on these policies where appropriate and necessary. Also, management and supervision should be well aware that any comments made, even in a joking fashion, can come back to haunt the speaker.

 
Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago, IL office at (312) 629-9300 or waliszka@wesselssherman.com.