A Dangerous Affair

Advice on all things HR from Shari Lau, SHRM-SCP, SHRM’s knowledge manager. E-mail your questions to Shari at AskShari@shrm.org.

By Shari Lau Feb 1, 2016
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Do you have any tips for handling Valentine’s Day at work?

HR Magazine February 2016Valentine’s Day is a time to express love and affection with potentially inappropriate gifts and cards, verbal declarations, and physical advances. What could possibly go wrong?

I think the week prior to the holiday should be dubbed National Sexual Harassment Training Week. Take a look at some of the U.S. Equal Employment Opportunity Commission harassment cases over the years, and you’ll find that Valentine’s Day has played a major role in some rather bad judgment calls by supervisors and subordinates alike. The holiday seems to give some people the impression that they have license to make moves they normally wouldn’t, all in the name of love, loneliness or who knows what. Your best strategy? In a word: training.

Think romance isn’t happening at your workplace? Think again. The results of Vault’s 2015 Office Romance Survey indicated that 51 percent of workers said they had been involved in an office romance, with 32 percent having had a relationship with a supervisor or subordinate. And despite all your diligent efforts to communicate with your workforce, 43 percent of respondents reportedly had no idea whether their company had a policy on interoffice relationships. Another 29 percent believed there is no such thing as an “unacceptable” office relationship.

Your company policy likely disagrees with that last sentiment, so you might take time now to do the following:

  • Conduct your annual or biannual anti-harassment training. Remind employees before the big day what behavior is unacceptable and how to report harassment. It might even be a good idea to include a Valentine’s Day scenario in your program. If conducting training isn’t possible, at least redistribute your anti-harassment policy to employees.
  • Create an office dating policy or remind employees of the current one. Some employers actually encourage dating among employees, while others don’t allow it at all. While prohibiting all dating tends to be seen as overly restrictive, allowing romance between supervisors and subordinates usually spells disaster. Let employees know what the consequences will be for violating the policy.
  • Require workers to report consensual relationships. You could have each employee sign an agreement, often called a “love contract,” stating that the relationship is welcomed by both parties. This can help the company defend itself in a future harassment case and can allow employees to have appropriate relationships openly.
  • Remind managers that unwanted gifts and cards can make employees feel uncomfortable or harassed. Ask managers to watch for signs that their subordinates are uneasy around certain co-workers.

While these suggestions provide a good framework to keep unlawful harassment at bay, remember that many employees spend more time at work than they do at home and that friendships and close relationships will develop whether you like it or not. In that context, celebrating the holiday may be something your employees want to do. Your job is to ensure that everyone knows their rights and behavioral expectations without creating a police state where positive relationships can’t flourish.

Can we dismiss an employee after three reprimands, even if they aren’t all for the same reason?

Progressive disciplinary plans are put in place to improve an employee’s performance or to correct unacceptable behaviors, and generally they give the worker a few chances to get it right.

The result of the process is either a reformed employee or documentation to support the worker’s discharge. When the reasons for the reprimands aren’t aligned, you’ve given the employee only one chance to improve on each unacceptable item, which probably doesn’t follow your own policy or build a strong case for discharge.

You should ensure that both employer and employee get the intended benefit from a progressive disciplinary plan—namely, good talent for the organization, a job for the worker and strong documentation.

To do that, you must know which offenses your policy covers and which are egregious enough to warrant immediate dismissal. When an employee is eligible for the plan, how many chances does he have to improve? A common strategy is to give three reprimands, with the third being a final warning. This shows that the employee was told what was unacceptable and how to correct it; was told again, with any clarifications needed; and then was given one last chance to improve, knowing his job was now in jeopardy. Many wrongful termination cases are won by employees who claim they had no idea that their performance or behaviors weren’t acceptable or that their job was in jeopardy, making the stated reasons for termination seem like a pretext.

Therefore, to show you had a reasonable complaint against the employee and wanted to give that worker the opportunity to improve as outlined in the disciplinary plan, the three warnings should all relate to the same behavior. It won’t work, for example, if, over the course of six months, an employee has been spoken to once for absenteeism, a second time about missing a deadline and on a third occasion for a minor safety infraction. What would you be terminating him for? He might not have missed any more work or deadlines in that same time period (which was the initial goal of your plan), so basing a discharge on a minor safety infraction in that case would not be fair and likely would not stand up in court.

Should we post a job opening when the hiring manager already has someone in mind?

If you’re asking whether you would be violating any laws by not advertising the position, the answer is probably not. Only federal contractors covered under the federal Vietnam Era Veterans’ Readjustment Assistance Act, as amended, are required to post most (but not all) positions externally. They also might be required to give preference to veterans when all other factors are equal.

That said, most employers will post open positions internally and externally to help ensure that they are engaging in nondiscriminatory hiring practices or complying with an affirmative action plan. Job-posting policies should reflect the employer’s commitment to both equal opportunity and internal promotion by giving all qualified candidates a fair shot at the position.

So what happens when a hiring manager wants to create a position for an employee in her department, wants to fill an opening with an employee who is about to be laid off or has an heir apparent for an upcoming opening? Wouldn’t she save recruiting time and expenses by identifying a qualified person before the job is posted?

Yes, she would. If the manager’s preferred candidate is already on staff, the argument could be made that she would be getting someone who has institutional knowledge and is ready to hit the ground running. And, of course, it’s a great morale boost for that particular employee.

But the negatives merit your full consideration. Do your policies allow for this? If so, are you prepared for any fallout? Employees might view your actions as favoritism and decide there is no room for advancement in the company. Posting a job internally can also help employers discover which workers desire to move up and what new skills or education they have acquired since they were hired.

Meanwhile, advertising externally can bring in even more qualified candidates. Allowing other internal or external candidates to apply could help the company fend off discrimination claims if white males are the only employees ever chosen for positions without competition, for example.

If your posting policy allows the company to make exceptions at its discretion, then you can go against policy—but make it a rare event, and have a solid business reason for doing so.

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