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The Unique Challenges of Millennials in the Workplace

It’s a ubiquitous concern I hear these days, particularly in industries with lots of twenty-something employees: young and inexperienced workers (often millennials) are embodying workplace behavior that does not jive with more traditional notions of professionalism. Some of these younger employees are turning to work for more than professional satisfaction.  Instead their workplace becomes a place to make friends, socialize, post workplace gripes and every day occurrences on social media, and even pursue romantic interests.

The consequence of turning work into social territory is that there is a relaxing of professional norms.  The Maier Law Group seems to be investigating and advising clients about more and more matters these days involving casual sexual banter, the sharing of naked photos, and the kinds of conversations that normally happen in a bar after several drinks.

It is not that relaxing professional norm is wrong per se. The California Supreme Court has been adamant that sexual harassment laws, for example, are not a “civility code” meant to dictate proper workplace conduct. In truth, most of what occurs in the workplace in terms of relationships and even hiring and firing is not legislated.  However, such conduct may still need to be addressed for other reasons. For one, the distance between what is illegal and what employees think is illegal is vast.  An employment defense lawyer knows that she must gear up to fight many battles about things that are not illegal but are filed in court nonetheless.  That means the employer must litigate claims (and bear the attendant expense and time it requires) even when it has done nothing wrong in the eyes of the law.

Another common complaint Maier Law Group hears is that employees whose conduct demonstrates a relaxing of professional norms are often the same employees who cry foul when such conduct no longer serves them. Today’s consensual sexual relationship between two employees is often tomorrow’s sexual harassment lawsuit.  Also, very risqué banter between a group of consenting employees is fine so long as no one objects.  But it turns problematic overnight when the company begins to performance manage an employee who later looks for ways to make the company legally accountable.

In addition, there are numerous data and constitutional privacy compliance consequences that millennials’ conduct can cause. The intersection of the digital age with the arrival of millennials in the workplace sometimes results in company business becoming the public’s business via social media sites.  More importantly, the frequent posting on these kinds of sites alerts potential hackers and cybercriminals to easy avenues for perpetuating phishing scams. In addition, millennials may be fonder of their devices than other generations, and it’s reasonable to expect that they and other employees have at some point downloaded important company documents to these devices via phone or tablet email interface.  Such documents then live outside the secured networks that generally exist in the workplace.Yet,  prohibiting employees from using their devices at work or for work purposes can decrease productivity and efficiency. Banning the discussion or posting of workplace matters and concerns is not the solution either.  Many companies have tried that, only to be found in violation of the National Labor Relations Act that protects concerted employee activity.

A better approach is for employers to adopt a  more nuanced social media policy that allows for concerted employee activity while prohibiting posting private information or statements that can be perceived as discriminatory or harassing.  Likewise, an employer is well served to implement a well-crafted Bring Your Own Device (BYOD) policy that keeps data safe at all stages of its life cycle  Employers can also implement a fraternization and dating policy, and one savvy client asked its managerial employee and his subordinate to fill out a “dating waiver” stating that they “assumed the risk” of potential claims of sexual harassment and discrimination the relationship might cause.  The waiver stated that both parties would inform the company right away if the nature of the relationship ever became non-consensual.  (The two worked together without conflict for many years and later married, proving that such a waiver makes practical sense at times.)

To be fair, employers should also recognize gifts that some millennials bring that the middle-aged and older generation may not have, such as a savviness about technology that comes easily to a generation raised on computers.  Of course employees of every generation demonstrate  problematic behavior at times, and today’s pervasive technologies and changing social norms make an employer’s deterrence of such behavior all the more challenging. However, the right policies go a long way in alleviating these problems.  Keep in mind, however, that a policy that exists and is not enforced is worse than not having a policy at all.  At least with the latter a company can claim it didn’t know any better. Whatever policies an employer chooses to adopt, MLG encourages employers to ensure that such policies are fairly and uniformly enforced throughout the company. We also encourage employers to periodically train and educate its staff about these types of policies as well as about harassment and discrimination laws in general.  Finally, MLG is developing a Professionalism and Good Citizenship 101 training to proactively create a positive company culture where a bright line is drawn between professional and unprofessional behavior.  A company would be well-served to think about the workplace culture it wants to promote and use live trainings, policies, and attention to example setting as a way to constantly reinforce the stated ideals it espouses.

Diana Maier