November 17, 2023

Scandals can be detrimental to an organization's success and its public perception. Particularly, in recent years, misconduct tied to racial and sexual harassment has made headlines. Internally, ethical issues can be harmful to employee morale and retention.

The workplace is constantly evolving, and society is becoming more cognizant of ethical issues. As younger generations enter the workforce, they desire to bring their whole selves to workblurring the lines of their professional and personal lives. While this does not excuse unethical or unlawful behavior, it may require employers to examine their own ethical obligations to employees.

Ethical questions are often very difficult. Obvious ethical violations involve discrimination or harassment. The law requires companies to be equal employment opportunity employers. However, compliance with the law requires more than a written policy as employers need to be proactive in their efforts to ensure that they are fostering a workplace environment for all individuals. While there are obvious instances of discrimination or harassment, improper conduct also can be very subtle. For instance, such conduct can include inappropriate jokes that were not intended to be offensive. Acceptance of subtle conduct like this can be evidence of a pervasive toxic workplace culture. Allowing this unethical behavior can lead to expensive legal and public ramifications.

Another common ethical conundrum is preferential treatment towards some individuals. Supervisors often take on roles such as an advocate, counselor, or even friend to their subordinates. These conflicting roles and competing loyalties should not color or compromise an employer's professional judgment or integrity. Preferential treatment can expose a company to legal and financial liability. Such differing treatment may not be born out of discrimination or other misconduct, but it may result in disparate treatment of older or disabled employees or employees of a protected gender, race, national origin, or religion. For example, employers should resist the urge to require some employees to verify an absence or extended leave while not imposing the same requirements on otherseven if an employer has a valid reason for questioning an employee's sincerity. In certain circumstances, this can give rise to a claim of discrimination when long term or favored employees are not required to do likewise.

Social media can also create ethical (and legal) issues. Social media is changing rapidly and entering all facets of public life, as it can be an effective tool to connect with other individuals on a personal and professional level. Even with all of its benefits, employee use of social media can create a plethora of issues, making it very difficult to manage. Some issues, such as personal use of social media during working hours, can be easier to navigate. However, other issues, such as posts disparaging (or even defaming) others or disclosure of some non-public information, can be more challenging. It is important for employers to create clear boundaries that address these potential issues while complying with state and federal law.

Not all ethical lapses generate unsavory headlines, but that does not mean they should be tolerated. One of the best ways to confront these issues before they arise is through company policiesgenerally located in employee handbooks. Creation of these policies can be a daunting task, but it is imperative that such policies are in place.

As we approach the new year, it may be time for employers to review their current policies. The calendar year 2023 was filled with employment law developments that impacted employment policies and their implementation. Even if your company updated its policies in 2022, it may be time to refresh those policies. Employers also should consider policies that they do not currently have in place. For instance, some employers have yet to address social media guidance in their policies. Failure to provide employees with clear guidance on social media can be detrimental to a company if issues arise without an already established approach to resolving those issues.

Implementing new or updated policies should be considered as employers enter the new year. Policies play a crucial role in the effective operation of every company, but it can be difficult to ensure that the are compliant with various state and federal laws. Our team of experienced attorneys can provide guidance in every step of the process from creation to implementation to ensure your company is prepared for the new year.

-- 2023 Ward and Smith, P.A. For further information regarding the issues described above, please contact Avery J. Locklear.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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