25 Oct Watercooler Workplace Rules

OCTOBER 2022 Watercooler Workplace Rules

As more people are heading back to the workplace and leaving remote work behind in the wake of the pandemic, we thought it might be helpful to remind people of some basic Do’s and Don’ts in the workplace. We represent both employees and employers in employment-related claims, and we want to remind both groups of some of the more common pitfalls that can get them in trouble. We call these our “Watercooler Workplace Rules” because even the most casual conversations around the office water cooler can get people in trouble.

• Whether you are an employer or employee, remember the laws banning discrimination are broadly construed and rigorously applied.  Of course, no employer can discriminate on the basis of race, sex, gender identity or national origin, but discrimination can take on many subtle forms. Discrimination, for example, can arise when a pregnant employee is automatically assigned to different tasks at work (even if the employer thinks they are helping the pregnant employee), or when a religious headpiece is not allowed per the express provisions of an employer’s dress code. Employers, no matter how small, should take care to have written policies in place that prohibit any such discrimination, even in the subtler forms.
• Harassment in the workplace similarly takes on many forms. Whether you are employer or employee, hesitate before you compliment someone or make an observation about another employee’s appearance, even if you think the statement is flattering.  Flattering statements can still constitute harassment if the statements are unwanted or inappropriate in the context of the workplace. Joking around is commonplace, we know that, but remember not everyone shares your sense of humor. Emails to co-workers forwarding off-color messages are just plain dumb.
• Employers must ensure that their internal controls are objective and scrupulous.  Any performance reviews of employees must be based strictly on performance, and not based on personal feelings or animus towards a person or class of people.  Retaliation against employees who point out or object to wrongful actions in the workplace is against the law.  That said, there may be times where employee discipline and/or termination is warranted and if an employer chooses to take these actions, they should not do it alone.  If you are an employer, make sure you have another individual with you to witness the discipline or termination, to protect yourself from later claims that you said or did something inappropriate in that meeting. In fact, one-on-one closed-door meetings are becoming a relic of the past, as more employers are taking smart precautions to avoid any “he said, she said” accusations.
• Employer monitoring of employee behavior is becoming a “thing,” and employees must understand their productivity may be heavily scrutinized, especially following the pandemic work-from-home lifestyle. We are aware of situations where employers place cameras on work computers to ensure employees are at their home office workstations.  Many employees monitor internet usage during work hours so think twice before clicking on that questionable website on your work computer.  But while there may be reduced expectations of privacy for employees in the workplace using the employer’s computer, sometimes this type of monitoring may go too far, trampling on an employee’s privacy rights in their homes.
• As we often remind our own kids, be mindful of what you post on social media. Employees, however, sometimes are forgetful of this advice.  Indeed, employers, especially government employers, tend to be sensitive to the content of their employees’ social media posts. You may think the opinions you post are your own private musings or political leanings, and the photos you post of you drinking at lunchtime are no one else’s business, but tread carefully.  By posting photos revealing your questionable judgment, you’ve given your employer an opportunity to decide whether you’re worth the risk.  And while your expressions of political opinions may be constitutionally protected speech, the tone and vitriol of your public musings may be fair game for employers.  As many employees are “at will,” think twice before giving your employer a reason to cut you loose.
• Employers should prioritize training and train both full-time and part-time employees on these and other issues on a regular basis (at least annually). An absence of meaningful training on harassment and discrimination in the workplace may cause liability for the employer. Employers should track which employees have been trained and continually update the training modules to address the current laws and practice.  But equally important as the training is the “buy-in” of the supervisors doing the training. If the top brass doesn’t believe in the training, training is largely ineffective. So get the buy-in from the supervisors and avoid these common pitfalls!

DISCLAIMER: The information on this page is provided for informational purposes only and should not be construed as legal advice or acted on as such. The content on this page may not reflect current legal developments or address your situation. It does not create an attorney-client relationship or provide guarantees or endorsement of behavior and is not a substitute for obtaining legal advice from an attorney on a particular legal matter.