United States: Live Action Role Playing — A Day In The Life Of HR

Last Updated: June 14 2019
Article by Devon D. Williams

Attendees at Ward and Smith's 2019 Employment Law Symposium got a taste of the legal twists and turns that any human resources professional could face: Employee vs. independent contractor questions, social media policies, harassment, and issues involving sexual orientation and transgender employees.

 The moderators — attorneys Ken Gray and Hayley Wells — focused on labor and employment law. The fictional scenario they led attendees through included several all-too-real surprises.

Gray and Wells invited participants to play the part of the new and first head of human resources for a company called Red Flag Security LLC., a cybersecurity firm. As they moved through the scenario, individuals at each table played the role of other employees, based on information contained in envelopes left on the table in this live-action role-playing exercise, also known as LARPing.

"Red Flag Security does not have an employee handbook or any personnel policies," Wells explained. It's staffed with 25 employees and 30 independent contractors, and "all employees are paid on a salary basis so as to avoid punching a clock and having to keep up with time."

Adding to the challenge, the company's president, "Buster Williams," wants the new head of HR to "keep him out of trouble," Wells said. But the one-person HR department has a shoestring budget and just one staffer.

Gray and Wells asked symposium attendees to identify issues they spotted. They cited the lack of an employee manual and personnel policies, concerns over whether some contractors might actually be misclassified employees, and questions about whether all employees should really be paid on a salary basis without any provision for overtime wages or keeping track of hours worked.

"Misclassification, independent contractors — the government is really cracking down on this issue," Gray said. "In North Carolina, the presumption is that an individual who is doing work for a company is an employee."

As the next chapter of the scenario unfolded, participants learned that there were more "red flags" with the fictitious cybersecurity company. At a meeting on Monday morning — the first day of work for the new HR officer — Buster announces he wants to fire an employee for bad-mouthing him and the company on social media. He also reveals that the employee used a company credit card to buy a $200 dress.

"The government has taken the position that you cannot do anything to chill or to thwart employees' ability to discuss the terms and conditions of employment with each other," Gray said. And that prohibition applies to social media posts that could be seen by other employees.

Gray noted the laws and regulations enforced by the National Labor Relations Board apply to all private employers — not just unionized workplaces.

In this kind of situation, Wells remarked, employers need more information before firing someone. "So far, there's been no investigation. We don't know the other side of the story yet," she said. "We need to have more information before we simply move forward."

Each tableful of attendees proceeded to "interview" the employee criticizing Williams, a company receptionist named "Sally Sayre."

Her story introduced some new issues into the fictional HR professional's already stressful first day.

Sally reveals that during a company Christmas party, Buster got intoxicated and made sexual comments toward her — knowing that she was a lesbian and had a partner. She says he also made disparaging remarks about Hispanics, which struck close to home for her because she and her partner had adopted a young child from Mexico.

Finally, Sally says Buster told her to use the company credit card to buy a new dress because she was the company's receptionist and it was important for her to look professional.

"There's a lot going on here," Gray said. "We have potential bullying. Drunkenness leads to inappropriate comments at a holiday party."

Wells noted that some of the harassing comments Sally alleges Buster made fall into a legal gray area.

"You're probably thinking Buster seems to be harassing his employee based on her sexual orientation — surely that's unlawful," Wells said, noting that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex.

"It's an unsettled issue at this point," she said. "However, it's one that employers should proceed with caution on because you do not want to be one of those test cases that makes its way to the Supreme Court."

At this point, it was clear to symposium attendees that they needed more information for their mock investigation. Fortunately, there was one more witness: another employee, Steve Strongman, who witnessed the Sally and Buster's exchange at the party.

Steve, it turns out, has known Sally since high school and has a poor opinion of her. He's also one of Buster's golfing buddies.

He tells a very different story, saying that Sally egged Buster on during the interaction, which suggests Buster's inappropriate comments might not rising to the level of sexual harassment. But then Steve opens up a whole new can of worms.

He's in the process of transitioning to female, he says, and he asks if it's going to be a problem to use the women's bathrooms and women's locker room at the company.

"We see a new issue — transgender issues," Gray said.

Like harassment based on sexual orientation, Gray said, transgender issues also fall into a legal gray area, with federal appeals courts having issued conflicting decisions.

"That has been taken up to the Supreme Court," Gray said. "We most likely will have a decision in 2020 on that. We just don't know what is going to be, how broad it will be."

But, he added, right now the Equal Employment Opportunity Commission considers it discriminatory to treat transgender or transitioning employees differently based on gender identity.

One participant raised the possibility of having a third gender-neutral locker to accommodate Steve.

"Employers cannot require someone who is either transgender or transitioning only to use a gender-neutral facility," Wells said. "While it may be a good idea to generally have that in the workplace, we cannot mandate that someone use that particular facility just because it makes us or someone else feel more comfortable."

Although a well-trained HR professional could handle many of the issues raised by the mock scenario, Wells and Gray noted, some of them might require help from an outside lawyer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions