Are You Ever off Duty?

There are two main trends that are driving employer interest in the off-duty activities of their employees: the ready availability of surveillance tools that make little distinction between work time and play time, and the potential impact of employee conduct that is outside of the employee's job description. The fundamental issue at stake is the protection of property, and over the last few years, the lengths to which employers can go to protect their property interests have been steadily increasing.

Coffee Breaks, Lunch Hours, and After Hours

The first and most obvious place that the tension between on-duty and off-duty activities arises is in connection with so-called personal time for employees during the work day. Most businesses give employees coffee and lunch breaks (in fact, such breaks are usually mandated by state and federal law). In addition, it's increasingly common for employees to remain at their desks after normal working hours.

Many employees who are scrupulous about not doing recreational Web surfing while they're working see no problem with doing a little shopping or checking sports scores during break time. And many if not most businesses recognize that some leeway is necessary to help maintain positive morale. Most employers don't object if employees make a limited number of personal calls during the day, particularly when they're on a break, and many have no objection if their employees do some recreational Web surfing or Solitaire-playing during their lunch hour. In some work environments, network game playing is even seen as a valuable team-building exercise, particularly among salaried employees who don't earn overtime when they're required to stay past normal work hours.

The problem is that if an employee is using company equipment on company property, an employer may still face liability issues, even if the employee is on a break. For instance, if an employee uses the company e-mail system to send out a racially or sexually offensive e-mail, the fact that he did so while on a coffee break or lunch hour is unlikely to relieve the employer of liability for permitting or failing to prevent a hostile work environment.

The practical issue for employees is that an employer who monitors Web activity is unlikely to stop doing so simply because it's lunch time or the clock has struck five. Put another way, if your employer does not want you visiting Playboy.com at 10:00 A. M., it almost certainly does not want you to do so at 5:05 P.M. either.

The debate over whether an employer is relieved of liability because an employee is off-duty has proven particularly important in sexual harassment cases. As a general rule, a court will look at whether the coercive or unwelcome behavior is based on the harasser's authority at work, and not whether the behavior actually occurred on company property or company time. If those elements are missing—if the alleged harassment occurs between co-workers with similar positions in the company and takes place, for instance, in the harasser's apartment—then it's exceedingly unlikely that the employer would be liable for sexual harassment.

However, a recent decision against Delta Air Lines illustrates how the boundaries of employer liability keep expanding. In March 1998, Delta flight attendants Penny Ferris and Michael Young worked a flight from New York City to Rome, Italy. During the layover in Rome, the flight crew stayed at the Savoy Hotel in a block of hotel rooms reserved by Delta. On the evening of March 17, Young invited Ferris to his room for a glass of wine. After about half a glass, Ferris felt faint and tried to return to her room, but was physically unable to do so. She lost consciousness and, while she was incapacitated, Young raped her. Ferris did not immediately report the assault to Delta officials or employees, but did so approximately two weeks later. Eventually, she identified Young as her assailant, and after an extensive internal investigation, Delta notified Young on November 5 that he was slated for termination. He chose instead to resign.

In July 1999, Ferris filed suit against both Young and Delta, claiming among other things that Delta was liable for sexual harassment. A year later, the U.S. District Court in New York City granted Delta summary judgment on the sexual harassment claim, saying that Young had no supervisory authority over Ferris and that the attack did not occur in a "work environment." Late last year, however, the Second Circuit Court of Appeals reversed the lower court decision and held that Ferris could pursue her claim against Delta for sexual harassment.

The court first concluded that a jury could find that the hotel rooms used by the flight crew constituted a "work environment." It also held that although Young had no supervisory authority over Ferris, a jury could still find that Delta was negligent in permitting harassment to continue despite knowledge of Young's proclivity to rape. Specifically, the court found that there was evidence that Delta had knowledge of at least three incidents in which Young attacked or harassed female flight attendants. "The more egregious the abuse and the more serious the threat of which the employer has notice," the Second Circuit Court of Appeals said, "the more the employer will be required under a standard of reasonable care to take steps for the protection of likely future victims."

The circumstances of Ferris are obviously somewhat unique, given the distance of the Delta employees from home and the role the company played in providing them with a place to stay. However, it does underscore the amount of supervision (and thus surveillance) that companies feel they must exercise when they arrange trips for employees to conferences, seminars, sales meetings, and so forth. Each could lead to the type of virtual "workplace" that tripped up Delta.

Romantic Entanglements

Sexual harassment and rape are obviously at the extreme end of employee interaction. Far more common in the workplace are romantic relationships that, at least in the beginning, are undertaken with mutual consent. A variety of studies conducted over twelve years have consistently found that between 75 percent and 85 percent of all employees have either been exposed to or involved in a workplace romance. ^[2]

Companies are clearly worried about the consequences of office courtship; in 1998, a workplace romance survey conducted by the Society for Human Resource Management (SHRM) found that 81 percent of human resources professionals and 76 percent of company executives agreed that workplace romances were dangerous because they could lead to conflict within the workplace. ^[3] Surprisingly, nearly three-quarters of all human resource professionals reported that their organization did not have a written policy regarding workplace wooing. Of the organizations that have a written policy regarding office romance, only 7 percent banned them outright; the majority either permit romances, or state that they are "permitted but discouraged."

Companies are interested in preventing or monitoring workplace romances for a variety of reasons. Some companies worry that office relationships will raise the issue of favoritism, particularly if one of the participants is in a supervisory or management position. The SHRM study found that 28 percent of human resource professionals felt that favoritism does occur as a result of a romantic relationship in the workplace.

Productivity is another concern. The same study found that 24 percent of human resource professionals felt that the coworkers involved in a romance are less productive, and 11 percent felt that an office romance reduces the productivity of other coworkers. Sixteen percent also felt that office romances reduced employee morale.

An additional headache is the public displays of affection that often accompany a new romance. Many companies that do not have policies regarding office romances do have formal or unwritten policies that discourage physical displays of affection between coworkers. Part of the concern is to keep other employees from feeling uncomfortable. But the main concern is that by allowing public displays of affection to occur without restriction, the company would be implicitly condoning unwanted physical advances that might lead in turn to a sexual harassment or hostile work environment claim.

Without question, however, the most serious risk regarding workplace romance is the potential for the romance to play a starring role in one of the more than 15,000 sexual harassment claims filed each year, either because the attention was actually unwanted in the first place, or because the relationship turned sour, bitter, and antagonistic. In an effort to head off these types of problems, many employers forbid workplace relationships and sometimes go to great lengths in order to make sure that they're not occurring.

One of the more infamous antifraternization policies was the one adopted by the superstore giant Wal-Mart, which used to require that employees get the permission of their supervisors in order to date each other. The policy was challenged in New York by two employees who were fired for dating, on the theory that the policy was in violation of the state's 1993 Legal Activities Law, which protects an employee's right to engage in various recreational activities. Remarkably enough, a New York appellate division court ruled that dating is not a "recreational activity," at least within the meaning of the New York statute. ^[4]

If a company adopts a policy regarding certain activities, then the question becomes what steps it will take to enforce it. A workplace romance policy such as Wal-Mart's creates a situation in which the company feels entitled to ask exceedingly personal questions about their employees' off-duty behavior. In 1996, for instance, Joe and Tiffany Peters met while working at a Wal-Mart in Dodge City, Kansas. Joe Peters informed his boss that he wanted to date Tiffany and was told that under the terms of Wal-Mart's policy, either Tiffany or Joe had to request a transfer or resign. Tiffany gave the company her two week's notice.

In an interview with Dana Hawkins, a reporter with U.S. News & World Report, Tiffany Peters said that her last day on the job was traumatic. She told Hawkins that two Wal-Mart district managers questioned her aggressively for two hours about the specific details of her emotional and sexual relationship with Joe. Daphne Davis, a spokesperson for Wal-Mart, contested Tiffany's account, saying that whatever questions were asked by the district managers were necessary to make sure that Wal-Mart's policy had not been violated by the couple. ^[5]

As a practical matter, there's no question that workplace romances are very common and will continue to occur. And not all of the consequences of workplace romance are necessarily negative: there is some evidence that coworkers who are dating spend more time at work, have higher motivation, fewer sick days, and less turnover. ^[6] However, most employers would probably agree that the risks of workplace romance outweigh the potential benefits. The chief consequence for employees is that a workplace romance offers an employer an excuse to probe the intimate details of their employees' personal lives. As a general rule, the less of an impact a relationship has on your work and conduct in the workplace, the less of an excuse your employer will have to start asking personal questions.

^[2]Charmine E. J. H rtel, "Vantage 2000: Romance in the Workplace and I/O Across the World," University of Queensland, Australia, January 1998).

^[3]"SHRM Survey Finds Office Romances Are Often Frowned upon by Employers," Press Release, Society for Human Resource Management (January 28, 1998).

^[4]New York v. Wal-Mart Stores, Inc., 621 N.Y.S.2d (N.Y. App. Div. 1995).

^[5]Dana Hawkins, "Who's Watching Now?," U.S. News & World Report (September 15, 1997).

^[6]Art Bell, Ph.D., "Romance at Work," McLaren School of Business, University of San Francisco, n.d. Available online at www.usfca.edu/fac-staff/bell/article16.html.