February 2020 Volume 2

OPERATIONS & MANAGEMENT

Is There Really an Off-the-Clock? By Johanna Fabrizio Parker

In my work, there has never been any “off the clock.” And that’s OK. Someone once told me that, in order to have work flexibility, you have to be flexible. It’s a good lesson to remember generally. But, I’m now seeing less and less separation for all employees - and, consequently, employers. I am sure you have dealt with issues concerning social media, and what employees (or others) may be saying about your company or your business. These comments can be challenging - and frustrating - all on their own, but there seems to be a new movement here. More and more, employees (and sometimes non-employees) are using these forums in ways that you - as the employer - cannot ignore. The most common issues are incidents of harassing conduct on line. And often, if not always, these come to your attention (as the employer) from someone else not directly involved. For example, two employees may be having a completely consensual “chat” (often including colorful and/or familiar language) which is then shared with another employee who is offended. My general rule is that, once you hear about it and know about it, you have to address it. (But to be clear: I do not think it’s a good idea, or a worthwhile use of time, for any employer to monitor all off-work activity. And doing so may run into various privacy and other laws.) The origin of the complaint, even if it’s not a formal complaint, can’t insulate you from liability once you know about it. But, here’s the good news (or, at least, the better news), you don’t need a separate response mechanism. With these out-of-work but now in work situations, you address them as you do for any similar conduct in the workplace. Like all complaints, I recommend meeting with the employees involved to understand the context. You can ask them to write a statement about any complaint. You can ask them for any texts or other messages exchanged, or if the communication was on company property, you can review independently (provided it’s OK under state law and your policies). If the conduct turns out to be actionable, you can address it with a warning (verbal or written),

training to the group, etc. And to the extent you learn of a personal relationship within the reporting structure (e.g., a supervisor and subordinate), you can address that as well. An interesting side note here is that more and more of these issues can be raised from outsiders (non-employees). You may hear from the wife of an employee who has issues with how her husband interacts with another employee. Or, you may hear from the new romantic interest of a vendor who has issues with how that vendor interacts with your employee (who may or may not have been a previous romantic interest). Or, the most challenging may be the anonymous statement on the comments portion of your website - making accusations about an employee. In other words, it can be a mess, and you may wonder whether it’s motivated by truth, concern or some personal vendetta. But, regardless, as the employer, you have to address it. You have to investigate and evaluate how your employees are interacting with each other and other third parties who do business with you. Indeed, many of the expanded anti-harassment state laws are specific that it’s not just about your employees - third parties can be harassed or be harassing too. A challenge in addressing these situations is how (or if) you respond to the complaining party. For an anonymous complaint, there is no one to respond to. But what about the wife or vendor inmy example? Even though they are outsiders, I would think about following the usual recommended protocol and letting each (i.e., the complaining party) know the complaint has been addressed but that you aren’t going to share confidential employment information. For the vendor (and especially if you have an ongoing business relationship), I would make sure to reiterate that, if there is any further issue, he should let you know. And your employees need to be educated on the changing landscape. Your anti-harassment training should address how out of work conduct can enter into work. It makes good sense from a legal liability perspective and because I believe employees need to

FIA MAGAZINE | FEBRUARY 2020 44