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Employment Law: Negotiating Between Personal and Work Time

I have been teaching for the American Management Association (AMA) for 27 years. One of my key courses is Employment Law, along with Negotiation. On the surface, one might think of employment law as boring but in actuality employment law is exciting and dynamic. I do my best to bring this dynamism to the teaching of this course.


Negotiation plays a major role in all aspects of employment laws. One finds negotiation in creating employments laws, regulations, hiring practices, conflicts and departures.


For example, during the last teaching of this course, we had an animated discussion of employers mandating COVID-19 vaccinations. The overall conclusion was “yes” with certain exceptions. Most folks had forgotten that public schools have been requiring up to 12 times the number of vaccinations before entering. These vaccinations even included mumps and measles, as well as polio and diphtheria.


Of course there are vaccination exceptions, such as health conditions or religious concerns.

I used skill practices, roleplays, pictures, court cases, examples, and quizzes to make the course exciting.


This blog entry will focus on several questions that highlight separating personal from work time. Some of these questions are playful and yet add insight to the dynamism of employment law.


First, my value system separates the work life from the personal life. This is one of the reasons I object to some professionals such as police stating that they are 24/7. No! I want to know what hours a police is at work and what hours they have their personal time. 24/7 on call is a bad idea. Police, like all professionals, need “down time.”


Question #1: What life events (birthdays, anniversaries, etc.) should be celebrated at work?

Most participants believe that these life event parties celebrating birthdays, wedding anniversaries, and baby births are great for bonding, for team work, and for work enjoyment.


My advice is to celebrate none of these life events.


I understand the value of celebrations at work for purposes of bonding, team work, and enjoyment. I would advocate that these celebrations be work-related:


-Celebrating the completion of a project

-Celebrating a work anniversary or a promotion

-Celebrating being awarded a contract


I also advise against having alcohol at any work function. Some businesses have “cork popping” celebrations. This is not a good idea. Alcohol changes people’s behavior. Some believe that alcohol allows people to say what they really believe. Some people become giddy with alcohol; some, too friendly: others, angry. I advise employers to play it safe and avoid all alcohol at the workplace or any workplace functions. Sparkling water?


Question #2: What holidays should be celebrated at work?

Most participants believe that these are generally okay but may be hesitant about religious holidays such as Easter or Christmas.


My advice is not to celebrate any of these holidays at work since these are not work related. Each holiday, whether it be Halloween or Easter, leaves some workers out or feeling uncomfortable.


I also advise against any prayer or religious sessions. Focus on work!


Question #3: Can an employee be fired because of stripping on the side or participating in porn?

Participants are usually torn by this question. On one hand, this seems to be personal and on personal time. On the other hand, maybe this off-work activity affects other workers if they get to know about it.


Generally in the United States, the answer may be a highly qualified yes. Many employees are listed as employees at-will, which somewhat means they can be fired without cause. There are many exceptions to the at-will firing without cause. This time of firing cannot violate any local, state, or federal civil rights.


An employment contract might help or might hurt in these cases. Some contracts contain “moral clauses.” Some employers might consider porn or stripping to be moral issues. If this were to happen, the employee would usually be offered severance and a NDA (nondisclosure agreement).


If one is in a protected category, the answer becomes more difficult. Some people estimate that half of the employees are in a protected category whether that be older folks, people with disabilities, race, sex, sexual orientation, etc.


Some have construed the moral clause to include dating clients or inter-office dating.


Question #4: Can an Employee refuse to sign a contract containing a morals clause?

Most new hires do not have the power to negotiate what companies consider to be standard moral clauses. But if one has the power, if the clause is overly broad or ambiguous, there may be room to negotiate.


Most companies and businesses are concerned with their reputation, brand and image. They fear scandals.


A morals clause is a contractual provision that gives a company the unilateral right to terminate a contract or take other remedial action if the breaching party engages in misconduct that might negatively impact the company’s reputation. It allows the company to quickly sever its relationship with the offending individual; thereby distancing the company from whatever the person did (or is alleged to have done).”


The company will begin by stating the morals clause is standard and there is no negotiation, but what if the clause is too broad? What if it includes dismissals merely for accusation rather than admissions of guilt or conviction? What about the presumption of innocence?


”Generally speaking, if an individual has sufficient bargaining leverage, she should aim to negotiate for a specific, narrowly defined set of triggering events in a morals clause. For example, limiting the morals clause to convictions of specific crimes (e.g., felonies involving physical violence or fraud) will better protect the individual by reducing the universe of events that might triggers the clause.”


A common term that is used in these clauses is Moral Turpitude. This term is not defined in statutes but is vaguely defined by judicial interpretation. Possibly it means wicked, deviant, out of the norm behavior. This is unpredictable.


“Accordingly, contracting parties would be wise to negotiate a provision that is written in plain english with reasonable specificity as to the prohibited conduct that would constitute a violation. Perhaps instead of a “moral turpitude,” a better drafted morals clause would consist of an itemized list of types of misconduct that would constitute a breach of contract.”

These clauses can be tailored to send a clear message of expected behavior especially when it comes to crimes against people, government authority or persons.


NOTE: Many companies protect their image by an employee handbook. These handbooks usually include a code of ethics and business conduct. Most often they include the term “reasonable.” Each employee must sign declaring they have read and understand the expected behaviors as outlined in the handbook.


Question #5: Can employers ban workplace inter-office dating and romances?

In class, when asked this question, most give a hesitant yes. They are right to be hesitant and to give a qualified yes. This field is ever-changing. Younger employees are more likely to engage in inter-office dating and more states like California are passing laws to protect privacy of workers when they engage in non-work activities.


Some states have privacy provisions in their constitutions. States such as Colorado, Louisiana, New York, and North Dakota have passed off-duty conduct laws.


First, there are no federal laws that would prohibit inter-office dating or romances. The fourth amendment of the U.S. Constitution may be relevant since it protects people from unreasonable searches and seizure.


Second, only 42% of employers have such a policy while 20% have no policy or reference to this issues.


-85% of employees between 18-29 say they would engage in such; whereas,

-30% of employees between 47-66 say they would not.


It is estimated that today 1/3 of romance relationships began in the workplace.


-30% of these relationships result in marriage.

-60% of employees state that they have engaged in inter office dating.

-3% have been caught usually (67%) discovered by gossip.


The pitfalls of inter-office romance are many, including:


-less productivity

-security concerns

-favoritism

-reputation damage

-harassment


Although some employers completely prohibit inter-office dating, others take a more limited approach by prohibiting relationships between those in the same department or between those over whom some have authority powers. Some, merely discourage; others, require disclosure.


Whatever method employers use, they need to be fair and consistent.


Another View; Another Perspective

Most of my responses to the above workplace employment questions are based on my value of separating work and personal time. This value is embedded in many of the laws that are being passed protecting privacy for duty conduct.


There are, of course, other views. Some believe that the pandemic work-at-home period has further blurred the lines between work and home. Often the home offices are not clearly separated, so during virtual meetings, other employees got more than glimpses of home life including pets, children, hobbies, etc.


Washington Post Magazine Writer Karla L. Miller in her piece, “How to Have Courageous Conversations at Work” claims that the “coded versions of employees” that were usually seen at work has changed. “The workplace masks are coming off." She asserts that more often than not vital topics of race, sexuality, and politics are being discussed in the workplace, especially with employers taking stands on certain social issues.


I would agree that the workplace is ever-changing. I would agree that employers are taking stands on social issues such as gay marriage. If discussion on sensitive topics aids diverse workers to be more comfortable and productive in the workplace, then this is good and this is work-related.


Conclusion:

Employment law is dynamic and fascinating. Governments are passing more and more work related laws; plus, the old laws are rarely sunsetted (terminated). This creates a confusing scene. Employers and employees should be in the know.


Employees need to be their authentic self, not a “coded” self. At the same time, in the employment situation there are boundaries, limits. My Grandpa used to say there are three things we don’t talk about in public. Maybe that old saying has substance?


SHRM is a great resource for keeping up to date.


Resources:

American Management Association

Develop Skills in the Critical Subject Areas Needed for Success. Join an Online Seminar. Tailored Training Solutions for Individuals and Organizations


Now is a pivotal time for the workplace and workforce as critical issues affecting society impact work. The Society for Human Resource Management (SHRM).




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