50 Shades of Uncertainty

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Employers generally have no cause to get involved with their employees’ personal relationships outside the workplace. However, what happens when the relationship is brought into the workplace and begins to affect the business, or impedes the employee’s ability to perform the necessary functions of his or her position? May an employer then get involved in a personal relationship and require an employee to take specific action and/or discipline an employee for reasons relating to off-duty conduct?

Since the beginning of time, personal relationships have been based upon one form of contract or another, wherein respective rights, responsibilities, expectations and obligations intrinsic to the union are spelled out and agreed to up front. Whether it be an ancient ketubah, modern prenuptial or civil union agreement, or simply a patriarch’s verbal agreement to allow a child to marry in exchange for a cow and a good laying hen. Whether the union is recognized by a state, an organization, a religious authority or simply between two people, relationships simply work better when people define the scope of a relationship before committing to one.

Now, that sensitive area between an employer’s right to terminate and where it must retain the employee because his/her relationship is a private affair has become a “grey” one.

A new relationship contract has appeared with the potential to directly affect an employer’s reputation and business prospects employee: consensual agreements between sex “slaves” and their “masters.”

There are plenty of agreements on the internet to be copied intact or altered for a couples individual taste. Without getting into specifics, the agreements call for the slave to be submissive to the master’s sexual desires and so forth.

Recently in Las Vegas a prominent consulting firm opened for business one Monday morning to learn a recently hired consultant had ended a personal relationship, with the other person in that relationship asserting the sex slave contract previously entered into between the parties was coerced and abusive. These allegations were not only brought to the attention of the employer, but to its clients, many of whom are, shall we say, conservative.

In similar fashion, New York citizens learned recently that what their Attorney General Eric Schneiderman considered “role playing,” his partners considered physical abuse.

In the Las Vegas case, the first thing the employer did was call its employment attorney to determine what if anything it should do with the allegations. After all, it had no information other that one party’s representation that the agreement was coerced and the employee had been abusive. Nevertheless, the mere publication of said allegations could potentially have a devastating effect on the employers’ business.

Erika Mitchell Leonard, who writes under the pen name E. L. James, will cause the rewriting of personnel policies the world over. What were previously harmless fantasy games between consenting adults provide too great a potential to land an employer on the front page of the local newspaper.

Employers must consider a morals clause similar to that which most actors and athletes operate under to put employees on notice that their actions outside the workplace can have deleterious consequences to their employers and they can be let go immediately for behavior which could harm the reputation of their employers.

A morals clause in your personnel policies should allow, the company to terminate if the employee engages in conduct that the employee knows, or that a reasonable person in the position of the employee would know, is or would reasonably be expected to have a significant adverse effect on the business or reputation of the company or any of its directors, officers, employees, or affiliates.

Confidentiality clauses must also become a part of your policies. Employees must be prohibited from disclosing the names of customers, subcontractors and any other company associations with anyone, no matter what relationship to the employee.

Employees a any level of the company cannot publically engage in the sorts of behaviors that can embarrass and harm their employers. Sexual abuse casts disrepute upon businesses of all sizes, as the recent case in Las Vegas illustrates.

Don’t think this is an issue that can’t happen to your business. It has and it can. This grey area should awake employers to a new world of relationships and it’s time to make prohibited behavior black and white in your employment policies.

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