Share The Knowledge: Forward this newsletter to a colleague.

Subscribe to AHI's Free E-Mail Newsletters: • HR Soapbox • Benefits Alert • Employment Law Today View samples and subscribe by visiting our website.

1. FEATURE STORY:
WHEN AN EMPLOYEE'S OFF-DUTY CONDUCT
BECOMES YOUR BUSINESS

The charges leveled against Atlanta Falcons quarterback Michael Vick are atrocious. There's no doubt about that. As a human being, you may be ready to throw the book at him (and worse). But if you're a Human Resources manager faced with an employee who is accused of engaging in criminal or otherwise unsavory off-duty activities, your reaction must be less emotional.

First, keep in mind that an arrest is not a conviction. In other words, Vick has not been proven guilty, although many are already vilifying him. While the workplace is not a court of law and does not require the same standard of proof for establishing guilt, and you probably have employment at-will on your side, the fact that minorities are statistically more likely to be arrested requires employers to be careful about holding an arrest against an individual.

At the pre-hire stage, employers may not ask about arrest records due to the potential disparate impact on minorities. Delving into convictions is more allowable. However, you shouldn't have a blanket policy refusing to hire those who have been convicted. One must consider the nature of the crime, the tie to the job, when it occurred, and the like.

If a current employee is arrested, don't jump the gun on punishment — regardless of race. Vick was barred from attending training camp. According to an AP report, the Falcons also wanted to suspend him for four games, the maximum penalty a team can assess. It did not, though, at the request of the NFL Commissioner, who asked the team to withhold punishment until the league investigates the matter.

Second, any actions you do take must be consistent with company policies and past practices. An employee who has been arrested may wind up missing a lot of work. You could theoretically fire the individual for attendance policy violations. However, if you gave another employee who got into trouble with the law for a similar deed an unpaid leave of absence to sort out the situation, it could be discriminatory to hold the absences against the other.

What about an employee's non-criminal off-duty activities? They fall into an even grayer area. Before taking action, you should consider whether:

• the activity occurred on company premises;

• the employee used company equipment or other property;

• the activity created a material conflict of interest;

• the activity negatively impacted worker morale or productivity; and

• the activity harmed the company's reputation or image.

The more of these factors that apply, the better you will be able to defend your employment decision.

Get more guidance on how to handle employees' off-duty exploits and other issues that cause management headaches in AHI's Employee Problem Solver manual and CD set.

2. CATHIE'S CORNER:
WHEN IS DIVERSITY IN THE
WORKPLACE DIVERSE ENOUGH?

A few weeks ago, I wrote about an instance where I, along with some confederates, placed flowers on the desks of all employees in an attempt to boost morale after a layoff. One employee wondered if this was not a forerunner of future layoffs, since in his native country the giving of flowers was a reference to death. I received responses from readers reminding me that it was not necessary to make exceptions in cases like this. They are, of course, quite right, and we had not done so. Even if I had been aware of this particular cultural belief, I would still have followed the plan. At most, I might have included him as one of my confederates.

This got me thinking about how we are told to celebrate diversity; to honor it; to welcome differences in employee histories and cultures and backgrounds. But at what point do you draw the line? When does it become the responsibility of the employee to accept that they need to adapt, too?

The obvious answer is that, when it starts interfering with the workplace and affecting the employee's, or co-workers', ability to do their job, then it is the employee, not the employer, that needs to adapt. But, like all obvious answers, there's more to it than that.

At that same employer, we had roughly 60 employees. Of the 60, we had employees who were born and raised in 12 different countries. Allowing that high a percentage the luxury of following all of their own traditions would have been disruptive. We did the best we could, but sometimes it was necessary to simply say, No, we can't accommodate that.

Of course, if you can accommodate employees in some instances without it causing a hardship, certainly you may do so. But when must you? That's a hard line to draw and will have to be considered on a case-by-case basis. It's even harder when the issue revolves around a protected right, such as religion.

We allowed employees to put their own screen savers on their computers, subject to certain limits. I had a project manager who was born in Poland. The IT department had an intern who was from India. In his religion, the symbol that we know as a swastika, turned slightly differently, is a religious symbol. The intern used this symbol as his screen saver. The Polish project manager found this symbol offensive, given the history of his country.

This clash between the cultures was more easily resolved than we had a right to expect. The intern had no idea what that symbol meant to the Western culture — in India, they don't study Western modern history any more than we in America study Eastern modern history. I explained to him what the swastika symbolized, particularly to the project manager's country. He was a reasonable young man and voluntarily took it down when he understood the issue, replacing it with another screen saver that still reflected his religious beliefs, but did not display the offending symbol.

When is diverse, diverse enough? It's not an easy question and I don't have an easy answer for you. When a protected characteristic, such as religion, is involved, it doesn't mean you have to allow an employee to follow all of the traditions of their religion while in the workplace. But neither should you dismiss them out of hand.

If you would like to share your stories of diversity issues you've grappled with, send an e-mail to the address below.

Catherine Bannon is the President of HR by Request, Inc., in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting firm.

NOT-SO-STRAY REMARKS SUPPORT AGE DISCRIMINATION CLAIM

The last thing you want is for a manager to make offensive comments about an employee's age (or other protected characteristic). This is the type of "smoking gun" evidence that leads employers to...View the full story on our website.

FREE REPORT

Check out the new Free Report, "Keep Caregiver Bias Out Of Your Workplace," which explores stereotypes associated with employees with caregiving responsibilities, as well as the illegal employment actions some employers take based on these stereotypes. You also get advice for helping all employees achieve a work/life balance and a sample family responsibilities discrimination policy.