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Policies aren't explicit on sex

The Sacramento Fire Department didn't explicitly prohibit workers from having sex on the job until this month, and in this respect, its work rules didn't vary much from most private-sector employers.

Since Fire Chief Julius Cherry announced an investigation into whether three male officers and one female officer engaged in sex during their 24-hour shifts, questions have arisen: How could the Fire Department not explicitly prohibit such behavior? And why are the incidents not a clear-cut cause for firing?

Like the Fire Department, many of the region's companies require employees to behave professionally instead of specifying all behavior that goes against the rules.

However, employers operating in an environment where workers may be terminated at will generally find it easier to fire workers who violate common-sense standards than do public officials who must show just cause.

At the time of the alleged sex, firefighters had a conduct book that instructed them to follow "ordinary and reasonable rules" and directed them not to bring "discredit" to the department.

Since then, a new book of rules and regulations has been distributed that specifically prohibits sexual conduct.

In interviews, human resource experts said it's common for employers to use vague language about "appropriate behavior" in handbooks. If something goes wrong, the company can refer to the clause as a catch-all.

"It's hard to have rules for everything," said Jen Jorgensen, spokeswoman for the Virginia-based Society for Human Resource Management.

At Catholic Healthcare West, for example, the employee handbook urges workers to use their "best judgment," said spokeswoman Mary Beth Teselle. Having sex on the job, she said, would be considered a violation of that policy.

Not all employers feel comfortable with being general.

At the Radisson Hotel Sacramento, for instance, employees are told that they're not allowed to show any "displays of affection," said Randall King, the hotel's general manager.

"No matter where you are in the hotel, the public can see you," he said. "We want employees to have fun, but not that much fun."

And at HR to Go, a Sacramento human resource consulting firm, president Karen O'Hara writes employee handbooks that describe unprofessional behavior as "inappropriate touching," including kissing, hugging, massaging and sitting on laps.

"It can be considered a hostile work environment for other employees even if the conduct is consensual," O'Hara said.

On discipline, experts say the Fire Department faces different standards from most private employers, where workers can be terminated "at will."

City officials have said they don't know whether consensual sex is cause for termination. The four firefighters are on paid administrative leave until the department completes an investigation.

"It's clear that it merits discipline," said Fire Department spokesman Capt. Niko King. But "we don't have a book that says what the level of discipline for this should be."

That's because public agencies generally have a set of standards known as "just cause" for firings, said Tim Talbot, a Sacramento employment lawyer who represents public sector employees.

Unless employees are specifically told not to do something, he said, it's a "gray area" whether an employee can be expected to know that. Even if written rules are in place, Talbot said, employees can argue that the rules weren't regularly enforced or that they weren't notified.

Talbot said public agencies should clearly notify employees about what's expected of them, and then evenly enforce those standards.

At the Radisson, King has never had to fire an employee for having sex on the job, he said. But he said he did while managing a Chicago-area hotel.

As he told it, a guest walked into his room to discover a room service waiter and maid engaging in a sex act. The guest was so startled, King said, that he accidentally snapped a photo with the camera in his hand.

The employees were promptly fired for public nudity, King said.

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