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In this ‘Me Too’ age, enforcing zero tolerance for offensive behavior may come at a cost

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It has been reported that recently, two long-term New York Mets employees were fired for privately telling an inappropriate joke to each other. Reports are that the employees were secretly recorded by a female co-worker who overheard the joke through the walls of the men’s room. The female co-worker then delivered the recording to Human Resources. The report further states that the men were not talking about any specific employees, and had never met the co-worker who procured the recording. Obviously, there is likely much more to this story of which the general public is not aware.

Without commenting on the specifics of this case, the facts give rise to a number of issues confronting an employer faced with a similar situation.

First, let’s deal with the issue of one employee secretly recording another employee. Florida has a wiretapping law that generally makes it illegal to record another person during a private conversation without his/her consent. The keyword in this law is “private.” This law, however, has numerous exceptions. For example, if someone is having a conversation in a crowded bar, it may not be protected because, if you’re having the conversation in the bar, it’s likely not “private.” However, if you are having a conversation in your office, or a private room, and no one else is around, then it’s likely that conversation is “private” and cannot be recorded without consent.

An employer faced with an employee secretly recording another employee should seek legal counsel to understand the legal implications of using the recording and the particular conduct of the employee who obtained the recording.

Practically speaking, one of the best ways to combat workplace issues is to foster an open, healthy and collaborative work environment. Tolerating and/or encouraging employees to secretly record other employees likely will not foster a positive workplace. Employers should make sure to strongly encourage employees to report misconduct, without also condoning employees secretly recording fellow employees.

Second, what is an employer to do with allegations that employees may be telling inappropriate jokes in the workplace? As with most employee complaints, a thorough investigation is critical. Issues that need to be addressed include interviewing all employees involved, determining what, if anything was said, and if anything was said, what was the severity of the commentary. A zero-tolerance policy as to offensive behavior sounds good on its face; however, it may come at a cost.

Employers run the risk of having to terminate employees based on the oversensitivity of another employee. Thus, we’re back to the same point above, a thorough investigation is critical to determining the nature and extent of the offensive behavior. The simple fact is, not all workplace violations are the same. Think of it like speeding. If the speed limit is 35 mph, a driver going 36 mph and a driver going 50 mph are both violating the speed limit, but those violations are quite different. The same holds true for workplace issues.

If an employer determines that there was misconduct, but that it’s not so severe as to warrant termination, the employer has a myriad of options. Suspension, demotion, a last-chance agreement and sensitivity training are all viable tools to address off-color conduct that isn’t severe enough to warrant termination. Of course, an employer always retains the right to terminate an employee if he/she engages in conduct that it determines inappropriate for the organization.

The best practice for an employer is to take all claims of offensive conduct seriously. A thorough and complete investigation will help to ensure that employees both feel heard and are given a fair attempt to explain what happened. In employment law, every situation is unique. Thus, employers should consult labor and employment counsel to ensure that they’re aware of and compliant with all applicable laws.

Michael Elkins is a shareholder and co-chair of the litigation practice group for the national law firm Bryant Miller Olive P.A. You can find Elkins on Instagram @melkins1 and on Twitter @melkins31175.

▪ This opinion piece reflects the writer’s views and not necessarily those of the Miami Herald and Business Monday.

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