Transparency and robust communication is a hallmark of a healthy organization. Certainly we strive for that at Barnes & Thornburg Columbus. That’s true in many contexts, but your business will be much less likely to incur employment-related liability if you can hit <Pause> and rethink these common statements before you move them from your brain to your mouth.
“You look hot in that.”
This is an easy one. When I conduct workplace harassment training, we usually have a good discussion about whether it is acceptable to tell somebody he/she looks nice today. The answer is, it depends – on where your eyes are when you say it, your tone of voice, whether you are the subject’s supervisor, and other factors. I will give you that under the right circumstances, a pleasant “you look nice today” can be acceptable.
But “hot”? No. Doesn’t matter how hip your workplace is and how everybody dishes it out equally; this one is asking for trouble, especially if and when the employment relationship with the subject of such a comment goes sour for any reason. There is no law against thinking it, but keep it to yourself.
“You can’t criticize the company on social media.”
Actually, under the federal National Labor Relations Act (NLRA), they probably can. Isn’t the NLRA the law that governs private sector union relations, you may ask? Yes it is, but it also protects employees’ right to engage in “concerted activity” or, in layman’s terms, to communicate about the terms and conditions of employment. Many statements on social media about the employer may be protected, though certainly communications that are harassing, threatening or that disclose confidential information, are not protected by the NLRA. Knowing where that line is is tricky; talk to counsel before taking action against an employee who vents a little on Facebook.
“I just don’t think you are a good fit here.”
Again, this statement may be what you think, and we all know that cultural fit is important in an organization. But this can be a tough statement to defend in a discrimination case. “Fit” – even if not intended – smacks of, “You are not like us.” You can see how that can be problematic where the recipient is of a different race, age or gender of the great majority of employees.
Rather than talking about “fit,” dig deep and figure out in more detail why you say that. Is the employee not sufficiently responsive to clients or colleagues? Not open with his/her thoughts in an organization where that is required? Not working hard enough? There’s a reason the employee doesn’t fit. Figure it out, communicate it to the employee, and give him/her a chance to correct it.
“Congratulations on your pregnancy, but this is a terrible time to be taking leave.”
This may be a perfectly logical thought – it can be hard to cover everything that needs to be covered when key teammates are absent for an extended period. But employees have a legal right to some degree of maternity leave under various laws; don’t go on the record expressing your concerns. Statements like that pop in cases alleging the employee was retaliated against for exercising his/her legal rights to certain leave. (This same principle applies to medical leaves that are authorized by law or policy.)
To some or all of these, you may say, “But I just tell it like it is. You always know where you stand with me and my team appreciates that.” I’ve heard that a lot. And that may often be true and valuable. But experience tells us that these comments, and others like them, just keep showing up in employment litigation and hurt the employer’s case, and even an innocent comment can put you in a bad light and cost you money in defending litigation to the optimal result.
Every now and then, being less honest will actually be the best for your organization.
This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
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