Managing employee conduct can be tricky, especially when it comes to disciplinary matters, but a presentation at the Hospitality Law Conference explained how managers can better handle HR issues before they become a problem.
HOUSTON—Managing employees isn’t an easy task.
Aside from making sure they’re taking care of their own responsibilities, managers also have to decide what action to take—or what action not to take—when issues arise regarding hiring and firing employees because of their conduct.
To illustrate this complexity of handling employee conduct, Tom Posey, partner at Faegre Baker Daniels, asked attendees of his presentation, titled “You can’t tell me what to do, I’m an employee! Strategies for effective regulation of employee conduct in a new age,” at the Hospitality Law Conference how they would handle different situations. Attendees had to decide whether a manager could reject a candidate covered in tattoos and smelling of cigarettes, whether an employee could be terminated for tweeting that she was high at work a few days ago and if an employee could be fired for getting into a fight and yelling racial slurs while off-property.
“The fact that every hand in the room didn’t go up or stay down for each one of these means there’s something we have to make sure that everyone in HR, the hotel and restaurant knows, and that outside counsel knows, is what do you do in these situations,” he said.
There are four main considerations when regulating employee conduct: pre-hire, during employment, basis for termination and post-employment.
Policies are a company’s friend, Posey said, and policies written for the pre-hire process aren’t for employees but for hiring managers. The policies in place for this should give practical guidance so hotel and restaurant managers—not just the HR directors—who are hiring new employees know what they can consider and what they can’t when reviewing and interviewing applicants.
Current employees are the audience for policies that cover workplace conduct, he said. In many cases, employers will give employees the handbook, have them sign that they received and read it, and then do nothing until there’s a problem years later when the employee is terminated for a policy violation in the handbook that no one ever revisited, he said.
Companies can decide how much or how little they want to do with a handbook and training, he said, but they need to make the decision one way or the other.
Managers and HR leaders need to understand what is and isn’t the basis for termination, Posey said, because there can be differing opinions within a company—or even within the same hotel—as to what qualifies as grounds for termination. Sometimes this problem doesn’t come up until the middle of a legal dispute, he said.
Employers can’t regulate a person’s behavior after they have been fired, he said, but the management team and HR should understand what the policies are for those who are no longer employees.
“Are they still allowed to be back on-property?” he asked. “Is anyone looking at Twitter or Facebook to see if there is anything they posted on the way out?”
It’s important for employers to be consistent with how they handle different situations, particularly employee misconduct, Posey said. Managers and human resources directors need to all understand what is and what isn’t the basis for termination under a company’s policies, he said.
“Consistency in the actions you’re taking is critical,” he said. “One of the biggest problems in a lot of employment disputes is there wasn’t consistency in how the same or similar situation was handled in the past. It had the opposite results with virtually the same conduct.”
Situations like these can arise when there are changes in the management team, he said, such as a new GM who isn’t aware of how things have been handled in the past.
One of the easiest ways to create and maintain consistency is to take inventory, looking at how many people have been terminated and for what reasons, Posey said. Doing that means also looking at the steps that took place before that, namely verbal and written warnings, final warnings, suspensions and ultimately termination.
“You want to see how much you have done over the past few years and what did you do it for,” he said. “If you have had quite a bit of discipline for this particular issue, you might need to tweak it or change what the response is.”
Being consistent with handling misconduct doesn’t mean a company can’t change how it responds, he said, but any changes must be done openly, publicly and in writing. Otherwise, employees will argue there was no way they could have known the new policies.
When changing a policy, employers will want to know every employee has seen the change, Posey said. In some cases, this might require more than simply having an employee check off a box and sign it, he said. Depending on how serious the change is to the organization, employers might want to consider something like a three-question quiz that employees need to fill out and send back.
“By having them answer these, they’re much more likely going to read the policy and answer it correctly,” he said.
It’s important for managers and HR directors to be on the same page, Posey said. In one instance when the two weren’t, a hotel hired a new employee who wore long sleeves during an interview. When the employee started, the hotel staff was wearing summer outfits with short sleeves. That was the first time the GM realized the new employee’s arms were covered with tattoos. The employee refused to wear a sweater, arguing about the right to freedom of expression, Posey said.
The GM had only been on the job for about three weeks, he said, and the property’s HR director was out on vacation. The GM panicked and, worried the hotel would end up as a news story over violating an employee’s rights, let it go for the day.
“In my experience, if there is a policy in place ahead of time and has been discussed between members of the management and executive team and HR folks, there’s so many instances where problems just don’t happen,” he said.
Employers should have a blanket prohibition on supervisors and staff connecting on social media, Posey said.
However, that doesn’t mean the company can’t take action against an employee based on information posted publicly online, he said. Employees might argue they have a First Amendment right to post what they want online, but that’s not exactly how it works, he said. It is legal to use information found on social media to monitor employee conduct and misconduct.
Referring to a situation in which a restaurant employee took a photo of himself taking a bath in one of the kitchen’s large sinks and posted it online, Posey said the employer can use this as a basis for termination.
There are circumstances in which employers can’t terminate employees for social media posts, such as union organization efforts. However, employers can at least tell employees they can’t post to personal social media accounts while on the clock, he said.
If an employee is running a social media account for the company or property, the employer should open the account first so it is under company control from the beginning, he said.