The SESCO Report – March 2008

Employee Dating — An Employer's Nightmare

Although an ancillary benefit of employment is that it provides employees opportunities to develop social (as well as business) contacts and friendships, relationships all too often escalate into personal relationships. For this reason, and because a "no-dating" policy may be perceived as an invasion of privacy, an employer must be very proactive in managing workplace relationships.

It should be kept in mind that dating relationships can provide grounds for sexual harassment, particularly among employees with compromising organizational relationships. To deprive all employees of desired social contacts because one may become contentious may be appropriate due to liability.

"Dating" is not a complex concept in an ordinary conversation. If someone said, "John and I are dating," anyone would know what was meant, without questioning. However, when an employer wishes to prohibit employees from dating each other, exactly what off-duty behavior constitutes dating can become rather complicated. Perhaps, in the final analysis, the employer might simply prohibit "dating" and rely on the commonly accepted meaning associated with the ordinary conversation.

The following are some complications involved in the question of "what is dating?"

? Is it any consensual social relationship?

? Must it involve some form of intimacy?

? What about mutual participation in athletic, entertainment, and cultural events (mixed doubles partners, two tickets to the theater, going to an art museum, bridge partners)

? What about frequency of the preceding, and combinations thereof?

? Can one say "appearing together in places of public or private accommodation?"

? Does one luncheon or dinner engagement suffice?

? What about "friends" of the same or opposite sex (sexual harassment is not limited to male-female interaction).

Whatever the answers to the above questions, employees may nevertheless perceive any off-duty prohibitions as an unwarranted intrusion into their private lives.

All such off-duty employee interactions can be prohibited where organizational relationships raise the specter of favoritism or liability, but without such relationships, the questions of to what extent may an employer legitimately control or be held responsible for off-duty employee conduct are significant employee relations and legal issues.

If a total ban on office dating is contrary to your company's culture, you have other options to decrease your liability from office romances. In these case-by-case situations, it is best to call SESCO to discuss options.

No Love for Romance Policies

Some employers opt to have no office romance policy, relying instead on their antiharassment and antidiscrimination policies. That option appears reasonable. Two U.S. Supreme Court decisions held that you may escape liability if you can establish that (1) you had an effective policy prohibiting sexual harassment and (2) the employee unreasonably failed to take advantage of the policy. Moreover, an employee who feels she has been denied workplace opportunities because she has resisted pressure to have a romantic relationship with a supervisor (or a fellow employee) may complain to your equal employment opportunity (EEO) officer, who should promptly investigate and take the appropriate action.

Antinepotism Policy

Steering a middle course, some employers have promulgated antinepotism policies, which prohibit spouses or relatives from working at the same company or from supervising or directing each other. Antinepotism policies are of little use in addressing relationships between employees who aren't married or otherwise related. Further, antinepotism policies that prohibit the employment of wives but not husbands (or vice versa) are likely to run afoul of Title VII of the Civil Rights Act of 1964.

No-Dating Policy

Sometimes called antifraternization policies, no-dating policies frequently struggle to define the conduct they seek to proscribe. How can you describe the behavior you want to forbid? Does your policy restrict dating, socializing, relationships, romantic involvement, or something else? How should those terms be defined?

Notification Policies

You can require employees to report their decision to enter into a consensual romantic relationship to a designated company representative (for example, your EEO officer). That way, you could be protected from later allegations of sexual harassment and be able to respond in an informed manner to complaints of discrimination or favoritism by employees who work with either person in the relationship.

A notification policy would require the dating employees to notify you if their relationship ends. Although this type of policy may be criticized as intrusive, it's less intrusive than a no-dating policy while still allowing you some opportunity to head off workplace problems before they spin out of control. Make sure your representatives understand they can't disclose the existence of the relationship to anyone unless it's necessary to respond to complaints about discrimination or other unlawful conduct by the employees who are dating.

Love Contracts

Otherwise known as a consensual relationship agreement, a love contract will confirm that a relationship is voluntary, inform the parties of your sexual harassment policy and how to report any complaints, and outline expected behavior, such as refraining from displays of affection at work or retaliation if the relationship ends. To prevent a claim that employees were coerced into signing a love contract, ensure they consult with SESCO as we develop these contracts.

Reduce Your Liability

Regardless of the policy you choose, you can take a few simple steps to reduce your potential liability:

? Train supervisors and managers to avoid workplace romances with their subordinates and to report any inappropriate behavior.

? Draft and disseminate an antiharassment policy with a procedure for reporting complaints.

? If a relationship develops between a supervisor and his subordinate, transfer one of them if you can ? preferably the supervisor ? so there isn't a direct reporting relationship.

SESCO provides compliant training, develops policies and "Love Contracts" for clients. Be proactive as most dating ends up causing workplace problems and employment liability.

25 Good Interview Questions...and 8 to Avoid

When preparing to interview job candidates, it's important for supervisors to plan out their lines of questioning. Decide which skills are most important for that position, then focus your questions on assessing those skills. Here are some sample questions to work from:

Employment History

1. If you had to evaluate your performance in your present job on a scale of 1 to 10, how would you grade yourself and why?

2. What skills have you acquired in your present job that make you the right candidate for this job?

3. Describe a recent event in your job that really challenged your capabilities.

4. Why do you want to leave your present job?

5. What have you heard about our company that leads you to believe you would like to work here?

Communications

1. Are you more comfortable working on a team or on your own?

2. What types of people do you find difficult to work with?

3. How often do you like to meet with your supervisor?

4. If you had an idea for a new project, how would you communicate it to your co-workers and supervisors and get it approved?

5. Describe what you consider to be the perfect boss.

Organization

1. How do you go about planning your schedule for the day?

2. How do you relieve stress at work?

3. What tasks in your present job do you consider to be a waste of time?

4. Do you consider yourself efficient? Why?

5. If you were given a long-term project, how would you approach the work?

Motivation

1. Tell me about a situation where you really blew it. How did you handle it? What did you learn?

2. What motivates you to do your best?

3. Think of a major accomplishment you had in your present job. What aspect did you find most satisfying?

4. If you could buy any skill that you don't possess, what would it be?

5. What tactics should a supervisor use to get the best out of you?

Managerial

1. What qualities do you possess that would make you a good manager?

2. Tell me about the best manager you ever had and what you learned from that person.

3. Tell me about your worst manager and what you learned from that person.

4. How do you create an environment that fosters teamwork?

5. How would you handle a conflict between your employees?

8 Questions to Never Ask

1. Are you married? Divorced?

2. How old are you?

3. Do you have (or plan to have) children?

4. Do you own or rent your home?

5. What church do you attend?

6. Do you have any debts?

7. Do you belong to any social or political groups?

8. Do you suffer from a disability?

SESCO consultants train leadership in interviewing, employment law do's and don'ts in the screening process, and we specialize in behavioral interviewing systems. Please call to schedule in-house training to improve your quality of new hires and retention.

Also, SESCO has added several new tools on our website to help screen applicants. Vist www.sescomgt.com.

How to Avoid the 5 Classic Firing Mistakes

Terminations may cause employees to cry, become defensive or even turn violent. Others may even distort what happened during the termination meeting to justify an EEOC charge or lawsuit.

To protect yourself and your company legally, always have someone else with you during the termination so no one can question what you say. Write a memo after summarizing what happened and have the witness sign it.

Here are five (5) ways to defuse a terminated employee's justification for a lawsuit or EEOC charge:

1. Keep your cool. Avoid heightening an already emotional situation. Don't spring the news suddenly or berate the employee in front of others.

2. Avoid surprises. Employees should never be completely surprised by a termination. Give them regular feedback on their performance and suggest ways to improve. At the very least, poor performance reviews prove to a court or the EEOC that you had valid reasons for firing.

3. Watch what you say. On the day you fire someone, he or she will remember whatever you say in the worst possible light. While you should always avoid making discriminatory statements, be especially cautious during a termination meeting.

4. Don't be too kind. You may feel compassion for the person, but don't express your feelings in the wrong way. If the employee's performance has been substandard, don't offer compliments on any aspect of his or her performance. Doing so might make you feel better, but it will only give the employee cause to question and challenge your reasons. And your off-handed compliments could turn up as evidence against you in a wrongful-termination suit.

5. Keep quiet. Don't discuss your reasons for the termination with other employees. It's enough to say, "Jamie will not be working with us anymore." Some managers have spoken too freely about the reasons for a departed employee's termination, only to find themselves in court defending themselves against a defamation-of-character suit.

SESCO retainer clients can call and discuss preparing for disciplinary and termination interviews. We will help with what to say, what not to say and proper documentation. Those who are not retainer clients and want this kind of daily support without additional fees, call Bill Ford at 423-764-4127 to develop a relationship.

SESCO Client Inquiry ? Staff Response

Q. Can employment be denied to an applicant based on their prior criminal history?

A. A distinction must be made between arrest records and conviction records. Because arrest records are not reliable evidence that a person has committed a crime, an employer would have difficulty justifying inquiries about an individual's arrest record. It is not recommended that employers inquire about arrest records on the employment application or during interviews.

Unlike arrest records, conviction records are reliable evidence that an individual actually committed a crime. However, a criminal conviction should not automatically eliminate an applicant from employment. The employer should consider when the crime occurred, the applicant's attitude about the crime, and the nature of the crime in relation to the job duties. For example, a bank would probably not hire a teller who had been convicted of embezzlement. On the other hand, a conviction for drug possession ten years ago might not exclude hiring a mechanic. State laws also need to be reviewed regarding the use of criminal records in employment. Certain occupations such as child care workers and persons caring for the elderly may be subject to laws concerning criminal records. Call Phil Richards to discuss state laws that are applicable to your industry.