Scenario #1: Can You Keep a Secret? You and Secret Sally have been friends for a long time. You both started working at ACME Corp. in the spring of 1988 and quickly bonded over your mutual appreciation for feathered bangs and Axl Rose. Over the years, through marriage and kids, you grew even closer, often spending time together with your families on weekends or at after-work happy hours. Keeping the personal and the professional separate has never been a real problem: Sally is and always has been a solid performer who has never required any counseling or disciplinary action. A few years back, Sally and her husband divorced. Since then, Sally has been active on the dating scene, and has been particularly enthusiastic about the popular dating app Stumble. When you see her outside of work, she is often glued to her phone, sending Stumble messages to potential suitors (of which there have been many!). One Saturday night, after a few glasses of wine together, Sally’s voice gets low and she asks, “Can you keep a secret?” With work the furthest thing from your mind, you answer, “Of course.” Sally shows you her phone. It’s a string of sexually explicit messages between Sally and another person, Anonymous Al. You don’t recognize the name Anonymous Al, or the email address ([email protected]) attached to the profile. “Look at the picture!” Sally insists. It’s a bit blurry. Anonymous Al is somewhat of an “artiste” when it comes to self-photography. “Who is it?” you say. “It’s Vinnie V-P,” she answers. Your heart skips a beat. Vinnie V-P is a high-level executive at the company, the CEO’s right-hand man. Sally doesn’t report directly to Vinnie, but Vinnie has an outsized influence in the . He can make or anyone. You look at the picture more closely. It definitely could be Vinnie, but it’s impossible to say for sure. “You can’t say anything,” says Sally. “You’ve got to keep this secret.” What do you do?

Scenario #2: Too Big to Fail Patty Pilferer is the kind of person who gets attention as soon as she walks into a room. Her poise is perfect; her fashion sense unparalleled; her business acumen as sharp as a tack. It’s no wonder that Patty is the ACME Corp.’s No. 1 account executive. She holds seven of the company’s 10 biggest accounts, including Vandelay Industries, the world’s largest manufacturer of widgets and gizmos. That company’s owner and CEO, Art Vandelay, is enthralled by Patty. The Vandelays and Pilferers are close family friends, and they all very much look forward to their annual ski trip together in Tugboat Springs. One day, Patty’s administrative assistant, Willie , gives you a call in your . You’re immediately concerned; you know that Willie is on a 90-day performance improvement plan and that Patty has given you express instructions to “find a way to get rid of him as soon as the lawyers say it’s OK.” Willie immigrated to the United States from the Kingdom of Arandelle when he was in his mid-30s and still speaks with a thick accent. He is 64 years old, openly gay, and deaf in one ear. Recently he was approved for intermittent FMLA in connection with his chronic irritable bowel syndrome. Patty’s gripes with Willie stem largely from the fact that Willie does not do well on the phone with her clients. He has a hard time hearing them, they have a hard time understanding him, and, as a result, phone calls have been missed and apologies need to be given. Willie is Patty’s sixth administrative assistant in 10 years. Willie gets right to the point: Patty is stealing from the company. Specifically, she is using her corporate credit card to purchase large amounts of designer clothing at her favorite store, Liquid Lunch. Patty then creates fake receipts for “business dinners” at a local restaurant (conveniently, also called Liquid Lunch) that never occur, to cover her purchases and submit them for approval. Willie suggests that some of Patty’s previous assistants may have quit the company rather than work for someone engaged in such a scheme. He also suggests that Patty’s protégé, Frannie Footsteps, who is a successful account executive in her own right, is engaged in similar behavior, having been taught and encouraged to do so by Patty. Willie has given you an ultimatum: Either fire Patty or he will retain a lawyer to sue the company for harassment, discrimination, and whistleblower retaliation. Patty is essential to the company. Without her, the Vandelay business will leave immediately, and likely, most of the company’s other big clients too. The receipts look legit to you, but Willie’s story is extremely specific—it’s hard to believe he could just be making it up. And Patty has a legendary temper: Confront her with an accusation that’s not true, and you’ll be the one looking for a new . What do you do?

Scenario #3: Pink Slips ACME Corp. is going through a rough patch. Your biggest competitor, Road Runner, Inc., has significantly cut into your market share. The powers that be have decided that cuts need to be made. Each of the 10 ACME locations across the United States and Canada have been asked to reduce their headcount by 20 percent. Every location has approached their task differently. Some have taken a “first-in, first-out” approach. Others have developed a numerical formula that weighs production with other “soft factors.” A few have simply asked their managers to make their recommendations and proceed accordingly. You get the final spreadsheets showing the proposed cuts, and have some concerns. The selected group appears, at least to you, to be much older and minority-heavy than your employee population as a whole. You haven’t crunched any of the numbers to prove whether that’s so (and wouldn’t necessarily know how to anyway—statistics was not your best subject). You also haven’t been asked to weigh in—the numbers were provided to you simply to get your department going on processing the necessary termination paperwork. There are also a few specific cuts that have caught your eye:

 Samantha Showing, 28, an above-average performer in your accounting department. Samantha got married last year and, by your observation and keen HR sense, seems to be starting to show that she is pregnant, although she has not officially announced this to anyone at work. Samantha was selected by her boss, Cranky Carl, based purely on Carl’s recommendation to his . Carl has been with the company longer than you have, and has on multiple occasions over the decades commented to you that he doesn’t like hiring young women because they “always quit to have babies,” then quickly clarifies that he’s “just kidding” and is really “a feminist.” You’ve never said anything to anyone about it. Carl does have a good track record hiring women into his department, although the ones who have stayed the longest are the ones without children. As far as you know, Samantha hasn’t said anything about being pregnant to Carl either, but like you, Carl is the kind of person who would pick up on such a thing.

 Sad Steve, 41, an engineer who has been with ACME since graduating from . Like you, Steve is an astronomy enthusiast. You know this because you are both on Spacebook, the world’s largest social media platform for skygazers. Spacebook is a real online “community”: Those who are the most active on the platform use it not only to talk about comets and constellations, but their real-life problems too. As a general rule, you don’t interact with Steve on the platform so as to keep your personal and professional lives separate. But recently you’ve noticed him posting some extremely personal information on the site’s message board. He’s recently divorced, lost his kids and his house, and commented that his work is “all he has going for him at the moment.” He’s expressed anger toward his ex-wife, once commenting that it is a daily struggle to keep himself from “taking revenge” against her. You haven’t talked to Steve about this directly. You’re concerned that losing his job in this round of layoffs might send him over the edge.

 Gray Gus, 68, an ACME salesman since what seems like the beginning of time. Over the past 5 years, Gus’ supervisor has enlisted you and others to try to put together a client transition/ plan for Gus, but he’s always refused. He’s going to work until he “drops dead,” he always says. Gus is usually one of the company’s top salespeople, but this year, his numbers are low, due in part to the fact that Gus was out for 10 weeks after hip replacement surgery. While Gus was out, his clients were serviced by Cheery Carla, 23, freshly out of college and still learning the ropes. For the sales department, layoffs were determined based on a purely objective criteria: sales volume over the past 12 months. Carla got credit for the sales she made for Gus’ clients while he was out; Gus received no credit. Had Gus received the credit, he would have retained his job and Carla would have been selected for termination.

What do you do?

Scenario #4: Stop the Steel! Snoopy Sarah is ACME Corp.’s biggest progressive party cheerleader. While ACME Corp. attempts to stay nonpolitical, it is very apparent that the vast majority of executive leadership is left- leaning. You have heard through the grapevine that Snoopy Sarah and Subaru Sam held a party to celebrate the impeachment of Ronald Rump, the very divisive current president, that was attended by a large number of executives of ACME Corp. Last week, Snoopy Sarah approached you with great glee and shared a screenshot of a SnipChat conversation she had with QAmen Quinn, an ACME employee. In the screenshot, QAmen Quinn can be seen standing on the steps of the U.S. Capitol, with a “Stop the Steel” sign and a baseball bat in her backpack. From what you can tell, QAmen Quinn was attending the Stop the Steel Rally, which aimed to prevent tariffs on steel imports, and turned rowdy due to incitement by Ronald Rump about efforts of progressives to tax the steel. The FBI is currently searching for tips about attendees at the Stop the Steel Rally. You know from watching television that QAmen is an underground movement that believes that the god of steel, Superman, will soon return, and has been engaging in sometimes violent protests about this second coming of Superman. QAmen has been declared a terrorist organization by Canada. Snoopy Sarah believes that ACME Corp. should fire QAmen Quinn based on the screenshot, and report QAmen Quinn to the FBI. You know, however, that messages between users on SnipChat are encrypted and private, and normally screenshots are not permitted. You can also tell from the screenshot that Snoopy Sarah may have duped one of QAmen Quinn’s friends into giving Snoopy Sarah their login and password. You approach ACME Corp.’s leadership about QAmen Quinn, without discussing the screenshot, and leadership indicates that they “have been looking for a reason to fire that Ronald Rump-loving dope.” They ask you if you have anything that could assist them. Shortly thereafter, you learn that Snoopy Sarah has shared the screenshot of QAmen Quinn at the Stop the Steel Rally with the CEO, KStreet Karl. Karl demands that ACME Corp. put out a statement against QAmen, fire QAmen Quinn, and send the screenshot from Snoopy Sarah to the FBI. What do you do? Some thoughts from Scott and Justin:

 Consider data ethics—should you be using information obtained in a surreptitious or illegal way? o Could using data obtained illegally open up your company to liability based on the (incorrect) assumption that the company encouraged such behavior? o If you champion Sarah’s efforts, consider the message that sends to employees about engaging in risky behavior, outside of official channels, where “the ends justify the means.”

 Which employee is worse: QAmen Quinn or Snoopy Sarah? o QAmen Quinn seems to be in a group that espouses odd views, sometimes resulting in violence (although Quinn himself has never been involved in violent activity, to your knowledge).

o Snoopy Sarah is attacking other employees, potentially committing crimes, and making demands of the company. o Is it a false choice? Your stakeholders may see it as taking a stand one way or the other, but consider that both employees here may be blameworthy.

 Consider whether it is the job of the company to report potential crimes that do not involve the workplace. o In most states, employers would not have an affirmative obligation to report this type of behavior. o A company may feel it has a moral or ethical obligation to report, but wants to be mindful of setting a precedent. . What types of activities will you report, and which ones will you leave “outside of the workplace”? . Consider that most employers do not consider reporting illegal drug use to authorities unless it occurs on the property. . Failure to adopt a consistent framework could leave you as an employer open to claims of discrimination (e.g., “You reported me and not her because I am [insert protected characteristic].”)

 Consider the issues involved in allowing political animus to dictate HR decisions. o Many take political stands and/or openly impose a conservative/liberal moral framework within the workplace. . So long as you are otherwise complying with applicable laws, this is legally OK. . But be mindful…  Some states/localities do protect certain forms of political speech, expression, and/or activity.  Some states/localities restrict an employer’s ability to influence employee political behaviors (e.g., “Vote for [Candidate] or your will drop $1/hour.”) . It’s one thing to be open with your employees about being a “liberal” or “conservative” organization from the get-go. But if your employees aren’t aware of your organization’s politics until they run afoul of them, is that fair? Ethical?

o Whether or not it is “legal” to bring politics into HR decisions, it may or may not be smart. . The general public tends to be sympathetic toward people who are fired for their “political views.”  Whether or not political activity is legally protected in your area, the fact that someone has been disciplined for political activity could influence a judge or jury in a case against you. . Are you limiting your talent pool for recruiting? . On the flip side, understand that taking a political stance can be a marketing tactic. Many organizations have chosen to represent themselves to the public in a certain way to “stand out” from the crowd. The effectiveness of this strategy might outweigh the negative HR effects.

Scenario #5: Dangerous Data ACME Corp. is on a hiring spree and is holding a job fair. ACME intends to interview over 100 people. Your colleague, Investigator Ivan, is obsessed with checking CourtWatcher, a state- operated website that contains police reports, charging documents, criminal complaints, divorce records, and all sort of other information about the interactions between people, law enforcement, and the courts. All of the information in CourtWatcher is public and available through public records requests. Nevertheless, many people in your state have raised issues about the fact that the website contains mere allegations of crime, which could harm individuals who have not been convicted. Both you and Ivan will be manning the booth at ACME Corp.’s job fair, but you are sitting at two different tables. You notice that Ivan seems to be turning away a number of people after they fill out information cards. As you approach his table to ask him what he’s doing, you notice that one of the names on the information cards is up on his screen on CourtWatcher. You can see that the individual was accused of child sexual assault. Ivan says to you “Wow, we totally dodged a bullet with that one!” You consider saying something to Ivan about his use of CourtWatcher, but you also know that CourtWatcher has records of your recent, messy divorce, as well as a mug shot and records regarding your not-so-recent overnight stay in jail after having been falsely accused of domestic violence by your partner. You are concerned that if you raise CourtWatcher to Ivan, he may ask what you are hiding, and find out what has occurred since you were hired over 15 years ago. When you return from the job fair, you decide it would be a good idea to report Ivan’s criminal investigatory activities of job applicants to your boss, Boring Bob. Bob has an incredibly short attention span. As you are heading into Bob’s office, you notice Ivan is in there and they are laughing together about some of the job fair applicants’ criminal records Ivan found on CourtWatcher. You also notice Ivan has emailed some pretty juicy court documents to others in ACME Corp. What do you do?

Some thoughts from Scott and Justin:

 What are the legal issues? o Certain states prohibit or limit the use of criminal history in decisions . Multistate employers often fall into this trap. o Other states limit the scope of criminal background checks o Under certain situations, the Fair Credit Reporting Act (FCRA) may also apply, which requires certain notice be provided to individuals. o When companies don’t have a consistent approach to recruiting (i.e., some recruiters impose different standards than others), there is great potential for liability, because some people will necessarily be treated differently than others, and it can be implied that different treatment is on the basis of protected characteristics. . At the very least, you might be able to argue to your stakeholders that having uniform standards is essential to avoid claims.

. Criminal background checks can also provide information on protected characteristics, further increasing the risk of claims. o While criminal background checks are not necessarily prohibited under federal employment discrimination law, the EEOC has opined that using criminal history information in employment decisions may have a disparate impact on certain protected classes. . Consider the effect of unnecessary/arbitrary criminal history requirements on recruiting and retaining a diverse workforce.

 Aside from the potential legal claims that could arise from using information from CourtWatcher in the hiring process, what ethical issues are present here? o What are you telling people when they apply? o Is it fair to judge applicants and employees by past actions? To what extent? o How do you balance the concept of rehabilitation with safety? o Are their PR/reputational concerns? o What about the potential for harassment/blackmail? . If Ivan has “dirt” on others in the workplace, how might he use it?

 Would it be OK if Investigator Ivan was looking at CourtWatcher when he was off- the-clock? o Perhaps, but once it spills into the workplace, it becomes your problem. o Consider this in the context of other protected characteristics (for example, religion): . If Ivan was doing research on everyone’s religious affiliation and spreading that information around in the workplace, how would you react? o Tolerating one employee who does this sends the message to other employees that similar behaviors are OK.

 How do you control or restrict use of CourtWatcher? o Do you have technical tools to block the use of CourtWatcher on company systems? o Consider data ethics again—just because information is public, is that something you should be using in your hiring process? Think social media posts, and really anything else you can find when Googling someone.

 Be a leader. o Your performance and professionalism are an example. Sometimes what happens outside of work is relevant, and sometimes it is not (or information is inaccurate). o Taking a principled stand despite the potential blowback to your personal reputation is the ethical thing to do.

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