Best Practices, Legal Requirements, and Respectful Workplace Culture

In the modern workplace, a respectful workplace culture isn’t just a cherry on top of a job role. If the work culture isn’t healthy and respectful, it could mean organizations lose their best employees and lose out on the best candidates. People don’t just want a respectful workplace culture, they EXPECT it. It’s a necessity for a high-performing workplace.

The issue, however, is that many organizations don’t realize the importance of creating and maintaining a positive culture. They also don’t understand the strong role leaders play in making that culture a reality. By empowering leaders to facilitate respect in the workplace, organizations can improve productivity and employee experience, and also protect businesses from legal issues and allegations.

Our Guest: Labor, employment, and human-rights lawyer Marli Rusen

On the latest #WorkTrends podcast, I spoke with Marli Rusen: labor, employment, and human-rights lawyer, mediator, arbitrator, author, speaker, and organizational consultant. Using her knowledge of workplace dynamics and law, Marli helps organizations create productive and healthy work environments. She reviews, analyzes, and helps resolve serious workplace issues, like misconduct allegations, employee disclosure, mental health discussions, etc.

Because of her extensive experience over the last 25 years, I wanted to get her take on how legal and societal expectations around respectful workplace culture have changed over time. According to Marli, in the last five years, a respectful culture has become a must-have at any workplace.

“Respectful workplace culture and conduct used to be an afterthought or a ‘nice-to-have,’ but has now turned into an expectation on the part of employees. And it’s now a legal requirement on the part of the courts,” Marli says. “It’s a core expectation in the employment world, and leaders should take notice of this.”

Why should they take notice? Marli says there are several reasons. 1) If an organization doesn’t take respectful conduct seriously, high-performing employees will look elsewhere. 2) If an employee sees that leaders are taking part in or tolerating misconduct, they may take legal action against them. And 3) organizations are putting themselves at risk in the “court of public opinion,” because employees can take them to task on social media. Leaders are key in preventing catastrophes and keeping employees happy.

“Leaders have a greater responsibility in maintaining a respectful workplace culture because they have greater authority. They have the power and therefore have the responsibility to exercise that to build and sustain a respectful workplace,” Marli says.

Walk The Talk: How Leaders Can Maintain a Respectful Workplace Culture

So what can leaders do to make sure they’re holding up their end of the bargain for employees? How can they best utilize their power for the good of the organization? According to Marli, they need to consider the three M’s of leadership.

“The first M is MODEL. Leaders need to model respect. Walk the talk. Show how they expect people on their teams to behave. The second M is MONITOR. Leaders need to get out there and engage and interact with employees to make sure they’re treating each other well,” Marli says. “And finally, the third M is MITIGATE. Leaders are the face of organizations, so they have to mitigate risks for other leaders. If they see something amiss at an organization, they need to speak up and help others.” 

As companies add policies to ensure a respectful workplace, they have to be careful that once the policies are written, there are plans to take action in the face of a violation. There can’t be a culture of avoidance at work, otherwise, there is no point in creating policies at all.

“In some workplace cultures, there’s a fear of holding people accountable because doing so will seem disrespectful. There is a belief that they need to make people feel good and not give critical feedback,” Marli says. “But once there’s been an objective review and allegations are confirmed, there’s an obligation to take action. Organizations must demonstrate through measured consequences that they take these issues seriously.” 

I hope you enjoy this episode of #WorkTrends. You can learn more about creating and sustaining a respectful workplace culture by reaching out to Marli Rusen on LinkedIn.

Photo: Jéssica Oliveira

Observing Workplace Compliance During a Crisis

News surrounding the coronavirus pandemic is developing at such a breakneck pace that by the time you read this article, the data in it will probably be outdated. As of this writing, there are more than 186,000 cases of COVID-19 worldwide. In the U.S., 49 states and the District of Columbia have reported more than 4,500 cases of coronavirus and 88 deaths. 

Managers and employees likely have worries about everything from job security to the risk of contracting the virus at work. Some private and public employers have begun shifting onsite employees whose jobs can be done remotely to working from home for the foreseeable future. But what if someone’s job can’t be done remotely? What happens when they exhaust all their sick time and other paid time off? Should an employer pay them even when they are furloughed?

It depends on whether they are an exempt (salaried) or non-exempt (hourly) worker. According to the U.S. Department of Labor’s Wage and Hour Division (WHD):

Under the federal Fair Labor Standards Act, employers aren’t required to pay hourly workers for time not worked, even if that is through no fault of the employee. If an hourly employee gets sent home, and their job can’t be done from home, their employer only has to pay them for their actual hours worked that week and subsequent weeks.

But the law requires salaried employees to receive their full salary for weeks in which they perform any work, with limited exceptions. This includes even minor work such as checking email and voicemail. A private employer may require exempt staff to take PTO in the case of an office closure, provided the employees receive pay equal to their guaranteed salary. 

So technically, an employer can stop paying an employee, whether hourly or salaried, if the employee is required to stay home for an extended period of time and his or her job can’t be done from home. Of course the ethics on that are a bit shakier. 

Further, some employers may have to comply with federal and state advance-notice requirements of up to 90 days for workers regarding furloughs and layoffs in certain circumstances (the WARN Act). But it isn’t yet clear if and how this applies to COVID-19-related layoffs.

WHD encourages employers to consider flexible leave policies for the sake of “community mitigation,” offer alternative work arrangements such as teleworking and additional paid time off, and consider strategies such as staggered work shifts to promote social distancing. 

Employees’ rights under the Family and Medical Leave Act

Employers covered by the Family and Medical Leave Act (FMLA) must provide employees up to 12 weeks of unpaid leave for their own personal illness or to care for children and other immediate family members who are ill. In addition to other criteria, employees must have worked for the employer for at least 12 months to be covered by FMLA. Your state also may have its own laws covering sick and family leave.

What if an employee’s child has been dismissed from school due to coronavirus fears and they have to stay home with them, even if the employee is not ill? While coronavirus so far seems to be bypassing the youngest of the population, there’s currently no federal law covering private sector employees who have to take off from work to care for children, and employers aren’t legally required to provide leave—paid or unpaid—to employees caring for dependents who have been dismissed from school or child care.  

The U.S. Centers for Disease Control says the virus appears capable of spreading “easily and sustainably” from person to person, but data shows that most people do not become seriously ill from it. Reports from China, where the virus originated, found that about 80% of cases were “mild” and led to full recovery. Of the 70,000 cases there, about 2% were in people younger than 19.  

“This seems to be a disease that affects adults, and most seriously older adults” from age 60 up, the CDC says. The highest risk of serious illness and death is in people older than 80 years of age and people with serious underlying health conditions. But given the potential for significant spread of illness in a pandemic, WHD urges employers “to review their leave policies to consider providing increased flexibility to employees and their families.” 

Furloughs and remote working

Some employers such as the hard-hit airlines have already begun asking workers to take voluntary furloughs. In the event of a mandatory quarantine or furlough, employees may choose to use sick leave, vacation or other PTO if their employer’s policies and applicable state law permits. If an employee is sent home, certain jurisdictions may require “reporting time” pay to compensate the employee for reporting to work even if work wasn’t performed or the employee didn’t work a full shift.  

If an employer requires staff to work remotely, the company is supposed to furnish employees with all the necessary tools for that, including laptop or PC, mobile phones, and other equipment, or reimburse employees for the cost.  

Employers also need to consider liability issues. Not having adequate policies in place to manage issues arising from communicable illness could expose them to significant legal risk, according to Harvard Business Review. If an employee becomes infected at work, employers may face OSHA penalties depending on the circumstances or be exposed to workers’ compensation, unfair labor practices, and other claims. Businesses such as restaurants also have to consider liability to third parties.

Staff with symptoms of infection should be sent home or instructed to stay home. If remote work is not feasible for their staff, employers could implement other measures to reduce close interpersonal contact, such as canceling in-person meetings and conferences, staggered or “shift” work as previously mentioned, and even changes to the office layout. Such measures could help protect workers from infection and the organization from liability. Companies should also consider extending or expanding benefits and protections for employees on leave who exceed their PTO allotment.

Regardless of their official leave policies, it behooves businesses to be more generous about paying furloughed or quarantined employees than the law requires them to be — not only for the sake of their business’s health and that of the community, but as part of being good corporate citizens. 

However, it seems that for now, all government can do is strongly appeal to employers to pay their furloughed or quarantined employees, but it can’t force them to. (Congress is reportedly considering some sort of paid-leave bill, but it is still in the works.) And in the meantime, employers are urged to do as much as they can to help their workers who must stay home. It’s not only beneficial to public health and the workforce’s own health, ultimately it will benefit the business as well.

For Those Who Just Need Or Want A New Job

“All we have to do now
Is take these lies and make them true somehow
All we have to see
Is that I don’t belong to you
And you don’t belong to me…”

—George Michael, Freedom

We just had a nice long weekend in Lake Tahoe. On one of the days our family hiked above the big lake and Emerald Bay and I imagined the California-Nevada state line cutting its way across the lake.

Emerald BayOn the Nevada side there’s legal gambling pretty much everywhere, and on the California side there’s legal gambling in very specific locations and with specific restrictions.

It got me thinking about what we discussed recently on the TalentCulture #TChat Show, the power of social media in your job search and how nurturing online and in-person relationships can improve your career prospects.

On the one hand the recommendations were important because we’re all perpetual candidates, whether gainfully and happily employed, or not. Nothing ever really stops us from wanting to be wanted. Any one of us can go from passive to active very quickly, pitting our hearts and minds against one another. With opportunity that abounds, there’s nothing wrong with a little window-shopping.

To the power of social! When we own our entrepreneurial career development, we are all free to stay or leave, to work wherever we want and whenever we want!

But that’s not the case, because on the other hand, more and more employees are being restricted as to where they go and what they do with potentially competitive employers. Noncompete and the nonsolicitation agreements are frequestly now required upon accepting employment, which are required of many sales, technology, R & D, marketing and management positions, among other positions.

Like the U.S. patent system today, which blocks innovative freedom more than it encourages it, these agreements can be scoped too broadly, or so specifically and far-reaching as to prevent anyone from ever leaving. Because if upheld, you couldn’t work for any immediate competitor or work with previous customers.

Why do employers need to do this? Is there really an imbalance in the workforce due to running willy-nilly to competitors? I seriously doubt it. Or, is it that the some businesses want to claim ownership over their employees?

Noncompete agreement, which are also known as a “covenant not to compete” or “restrictive covenant,” protect employers by legally binding an employee to promise not to work for a direct competitor in a geographic area for a specified period of time after he/she leaves the company.

Jonathan Segal, an employment lawyer and partner with the international law firm Duane Morris LLP, explained to me that for a restrictive covenant to be valid, it must ordinarily meet three requirements:

  1. Serve a legitimate employer interest such as protecting:
    • Trade secrets and other confidential information or
    • Customer relationships
  2. Be reasonable in terms of:
    • Activity restrained (what you can do post-employment)
    • Geographic scope (where you can work post-employment)
    • Duration (how long you have to wait to work for a competitor)
  3. Be supported by consideration (meaning a requirement of employment):
    • New hires – employment can be the consideration
    • Current employees – states disagree as to whether continued employment can be the consideration or whether something else of value to which employee is not already entitled is required, such as bonus, higher pay increase, etc.

Jonathan also recommended that employers need to balance legal protection upon termination versus how tough their non-competes are and how they may push away talent. Plus, imposing the same restrictions on all employees may undermine the legitimacy of non-compete – how can you impose same restriction on a mail room employee as you do on CEO? And what do you think that does to keeping workforces productive and motivated?

The variation of enforcement from state to state can make the head spin. In California, these agreements are not only unenforceable, but in some cases invalid except in limited circumstances.

However, employers in California can use nondisclosure agreements to protect their trade secrets and non-solicitation agreement with regard to their employees but not their customers.

In an age where we celebrate the socially networked entrepreneurial employee, it’s counter-intuitive and counter-innovative that at the same time the complexity of legal protections seems to again favor the employer. We work harder and longer hours than in history and our productivity continues to hit new highs. Our inherent competitive nature commands it.

It’s truly a gamble either way, but I feel the legal restrictions on employees hamper the very capitalistic growth opportunities, not to mention the jobs, that keep innovative mindsets motivated. That’s why I empathize more with those who just need or want a new job than those that offer them.

By the way, my lawyer friend Jonathan wanted me to emphasize that this article should NOT be construed as legal or as pertaining to specific factual situations. We just wanted to make that clear.

The Complicated Nuance Of Workplace Bullying

I just didn’t want to go anymore. She made it nearly unbearable.

It didn’t start off that way, though. When we first started working together as colleagues in the same department, our relationship was amicable and tolerant. We because fast friends and got to know each other very well, including our spouses, lives and everything in between.

The first time it happened, it made me flinch inside a little, but not enough to rethink our relationship. The tenth time it happened, I felt sick every time we ran into each other in the office.

She became obsessed with my life and me. Not in a sexual way, although there might’ve been some covert element at play there. What started off as warm, daily banter each day at work because an incessant review and critique of everything I did – my job, my staff, my wife, and my life – in front of anyone who was in the office at the time.

When I finally called her out on it one day, she said she just cared about what happened to me and wanted me to succeed and be happy. I told her what she said made me feel very uncomfortable. She seemed mortified, but the very next day the behavior continued. Non-stop. For months.

Our offices were only separated by one wall and one door, so there was really nowhere for me to go. Finally I discussed it with our mutual manager, who in turn had a sit-down with both of us. For one week I received a reprieve.

But it still didn’t stop. Then I convinced our manager to get human resources involved. There were more meetings and an actual agreement drafted for her stating when to engage with me about work and when to leave me alone.

But it still didn’t stop. Not until I finally quit. I had told her more than once, in person and in writing, of how uncomfortable she constantly made me feel. She always said she was sorry and willing to change her behavior, but it never happened.

But was it workplace bullying? Harassment? HR called it harassment. Either way it was painful, the complicated nuance of her constant invasive behavior. If what she did and said to me repeatedly over time affected my ability to be productive and engaged in my job, and it was personally debilitating, meaning I took it home and struggled with it, then it’s truly unacceptable.

But was she a bully and she should have been labeled as such? She claimed to only care about my well being, to being supportive of me, not critical and demeaning.

Nearly 20 years later, we’ve reconnected online. It’s water under the bridge, shall we say. She told me how she worked really hard to change her behavior, which she actually did after some serious life changes, and was very apologetic about the past.

I know how she feels; I’ve been on both sides of the complicated nuance.

Now we want to get tougher on bullying. According to the Healthy Workplace Bill, a law that has been introduced to over 28 legislatures (26 U.S. states and 2 territories) that would affect the practices of state and local government agencies, not private employers, “harassment, intimidation or bullying” is any act that “substantially interferes with a person’s work performance or creates an intimidating, hostile or offensive work environment.”

However, it’s not a law anywhere in the states at this point. And most organizations would argue that they already have company policies in place that prohibit bullying and harassment and deal with them accordingly.

And even though the employment world is already heavily regulated, one major gap remains: workplace bullying. No state prohibits bullying as noted above, unless it relates to a protected group (such as race, sex or disability).

But no one can agree on what constitutes bullying either. Our recent guest on the TalentCulture #TChat Show, Jonathan Segal, an employment lawyer and partner with the international law firm Duane Morris LLP, made it clear that:

“If we make everything bullying, then nothing is.”

Having children, I realize and have already seen how teasing is a gateway drug to bullying and beyond. Many people say they experience some form of it, though. According to one recent study, 96% of American employees experience bullying in the workplace, and the nature of that bullying is changing thanks to social media and online interactions (think cyberbullying and the dissed-engaged).

Most of us agree that workplace bullying has harmful, reverberating effects, not only on the victims, but also on the witnesses. The good news is that we don’t need to wait for a law to be enacted to prevent and respond to bullying. Progressive employers who want to successfully ensure their cultures are bully-free should:

  • Beware of labels. Dr. Susan Swearer is Professor of School Psychology at University of Nebraska and Co-Director of the Bullying Research Network agrees that labeling and change (or lack thereof) are closely linked with children. She thinks that “it’s really important to think of bullying as a verb and not a noun, so bullying is a behavior that can be changed, not a character trait within a particular child. When we treat them as ‘a bully,’ then we send the message to that child that ‘You can’t change’ or ‘I don’t think you can change.’ And so we really want to communicate to these kids, ‘You know you can change and I can believe that you can change.’” Unfortunately we can carry those labels around like scarlet letters throughout adulthood.
  • Change the behavior. Yes, we know we can change, at least most of us, and so we should believe that mantra if we really want a positive, team-building, engaging, business-outcome behavior. Like Mark Fernandes told us recently, Chief Leadership Officer Chief Leadership Officer of Luck Companies, culture is the shadow of leadership, so positive values should be established by leadership and emphatically in place and embraced by the organization in order to reduce the frequency of bullying and harassment. Toxic environments breed nothing but more toxicity, and that’s allowed to permeate from the top down. So only the top down can make and drive change, igniting a bully-free culture from the inside out.

It’s time for us to unravel the bullying nuance and make it uncomplicated altogether.

The Social Workplace: Nowhere To Hide #TChat Recap

“A lack of transparency results in distrust and a deep sense of insecurity.”
–Dalai Lama

Excellent point. But the Dalai Lama’s quote begs a key question: In the social workplace, how much transparency is too much? Moreover, what does “privacy” really mean today, for employees as well as employers?

Obviously, there are no simple answers. And best practices only continue to shift, as social tools and conventions evolve. However, this issue affects everyone in the world of work. So that’s why TalentCulture invited a social-media-savvy HR attorney to help our community explore these issues at this week’s #TChat forums. We were thrilled to welcome Mary Wright, former General Counsel at employment litigation firm Ogletree Deakins, and founding Editor of HR Gazette, a daily online newspaper for HR professionals and employment lawyers. (For event highlights, see the links and Storify slideshow at the end of this post.)

Social Disclosure: Less Is More. Or Is It?

Ubiquitous social media channels. Smartphones with cameras. (Does anyone remember “old school” film cartridges anymore?) Circles of “friends” we’ve never even met face-to-face. It seems like nothing is truly private anymore. Most of us share photos, post comments and tell the world whatever pops into our minds throughout the day. But how does all that activity expose us professionally in unwanted ways? And what are the implications for the organizations we represent?

Here’s the kicker question: In an open social environment, how can companies encourage employees to serve as brand ambassadors, while ensuring that those same individuals use appropriate discretion?

Knowledge Is Power

As many #TChat participants noted this week, the answers start at the top. Senior executives must lead by example and encourage others to follow. Treating employees with candor and respect means that candor and respect will likely be returned. Communicating company objectives and priorities helps employees feel valued and empowered. And clarifying social policies provides a framework that makes it easier for employees to comply. Sharing more information with employees doesn’t need to put employers at risk. Instead, it can create a spirit of collaboration and strengthen employee engagement.

At the same time, employers should respect employee privacy. Again, leading by example is key. Managers should avoid gossip around the office and outside of work. This sounds like common sense, doesn’t it? And yet, I’ve overheard managers openly discussing an employee’s personal hardships, including private medical information. When managers breach that kind of trust, it leaves a memorable impression for everyone involved.

Amplify This? Think Before You Go Social

These days, social media adds another dimension. Employers can no longer afford to operate without documented social media policies. But what should the guiding principle be? Here’s a simple idea from Dave Ryan:

And what is an employee’s responsibility when interpreting social policies? Jen Olney offered sound advice:

Or perhaps for some of us, that sequence should be Stop. Think. Stop some more…and more…and more…then send.

In other words, before posting a comment or photo, consider for a moment who may see that information. How might they perceive it — for better or worse? Ask yourself, “Would I want my grandmother or daughter to see what I am about to make public?” Remember, once you post it, you won’t have control over where it may be seen, or how it will be interpreted. So perhaps the very best policy is for each of us to take responsibility for ourselves, and err on the side of caution.

To see more about this week’s conversation, see the resource links and Storify highlights slideshow below. And if you have ideas, feel free to share a comment, or post in the #TChat stream. This is just the start of an ongoing dialogue — so please weigh-in anytime!

#TChat Week-In-Review: Workplace Privacy vs. Transparency

SAT 9/21:

Mary Wright

Watch the Hangout with Mary Wright now

#TChat Preview: TalentCulture Community Manager Tim McDonald framed the topic in a post that features a brief G+ Hangout video with our guest, Mary Wright. Read the Preview:
“TMI: A Fresh Take On Privacy By An HR Lawyer.”

SUN 9/22: Post: TalentCulture CEO, Meghan M. Biro outlined 5 issues for business leaders to consider about transparency in today’s social world. Read: “Private Workplace Lives In a Public Social Age.”

MON 9/23:

Related Article: Entrepreneur David Hassell talked about why and how trust is the most precious currency for any new venture. Read: “Want to Build a Business? Lead With Trust.”

TUE 9/24: Post: TalentCulture CEO, Meghan M. Biro shared compelling leadership lessons learened from a cultural clash at a software company in transition. Read: “5 Social Skills Business Leaders Must Master.”

WED 9/25:


Listen to the #TChat Radio show now

#TChat Radio: Our hosts, Meghan M. Biro and Kevin W. Grossman spoke with Mary Wright about legal issues and implications surrounding privacy in the workplace — from multiple perspectives: employers, employees and job candidates. Listen to the radio show recording now!

#TChat Twitter: Immediately following the radio show, hundreds of community members gathered with Mary on the #TChat Twitter stream for an expanded discussion about this topic. For highlights from the event, see the Storify slideshow below:

#TChat Highlights: Transparency vs. Privacy In The Workplace

[javascript src=”//”]

Closing Notes & What’s Ahead

GRATITUDE: Thanks again to Mary Wright for adding your insights to this week’s discussion. Your legal and HR expertise added depth and perspective to a topic that increasingly affects us all.

NOTE TO BLOGGERS: Did this week’s events prompt you to write about information sharing in the new era of social business? We’d love to hear your thoughts. Post a link on Twitter (include #TChat or @TalentCulture), or insert a comment below, and we’ll pass it along.

WHAT’S AHEAD: Next week, we tackle another “world of work” hot topic — The Dark Side of Workplace Effectiveness — along with two of the HR community’s best-known social commentators: John Sumser, editor-in-chief of HRExaminer; and William Tincup, CEO of HR consultancy Tincup & Co. So save the date (October 2) for another rockin #TChat double-header.

In the meantime, we’ll see you on the stream!

Image Credit: Pixabay

TMI? Fresh Take on Privacy by an HR Lawyer #TChat Preview

(Editor’s Note: Want to see complete highlights and resource links from this week’s #TChat events? Read the recap: “The Social Workplace: Nowhere To Hide.”)

For better or worse, much of today’s world of work now plays out on a relatively open, social stage. Many of us — employers, employees and job candidates alike — welcome this as progress. However, it also raises core legal questions about transparency and confidentiality on all sides of the employment equation.

It’s like a scene from Goldilocks and the Three Bears. How do you know if you’re openly exchanging too much information? Too little? Or just the right amount? What business practices are accepted in your organization? What does common sense tell you? And what would a lawyer do?

Fortunately for the TalentCulture community, a smart, HR-savvy attorney is in the #TChat house this week to advise us about these issues!

Our guest expert this week is Mary Wright, former General Counsel of Ogletree Deakins, a premier employment litigation firm, and founding Editor of HR Gazette, a daily online newspaper for HR professionals and employment lawyers.

To kick-off this week’s conversation, I spoke briefly with Mary in a G+ Hangout, where she explained why it’s time to recast “privacy rights” workplace issues in a more positive light:

#TChat Events: Transparency vs. Privacy in the World of Work

This promises to be an enlightening week for HR and recruiting professionals, as well as employees and job seekers everywhere. So join us with your questions, concerns, ideas and opinions!

#TChat Radio — Wed, Sep 25 6:30pmET / 3:30pmPT


Tune-in to the #TChat Radio show

Our hosts, Meghan M. Biro and Kevin W. Grossman talk with Mary Wright about legal issues and implications surrounding privacy in the workplace — from the perspective of employers as well as employees and job candidates. Tune-in to the interview LIVE online, and call-in with your comments and questions!

#TChat Twitter — Wed, Sep 25 7pmET / 4pmPT

Immediately following the radio show, we’ll move the discussion to the #TChat Twitter stream, for an open chat with the entire TalentCulture community. Anyone with a Twitter account is invited to participate, as we address these questions:

Q1: What does transparency and privacy in the workplace mean to you?
Q2: Are transparency and privacy essential to orderly and efficient workplaces?
Q3: What are the most common legal mistakes employers and employees make with one another?
Q4: What can business leaders do to balance the two and avoid legal trouble?
Q5: How does technology enable and hinder transparency and privacy in the workplace?

Throughout the week, we’ll keep the discussion going on the #TChat Twitter feed and on our LinkedIn Discussion Group. So please join us share your questions, ideas and opinions.

We’ll see you on the stream!