To illustrate this complexity of handling employee conduct, Tom Posey, partner at Faegre Baker Daniels, asked attendees of his presentation, titled "You can’t tell me what to do, I’m an employee! Strategies for effective regulation of employee conduct in a new age," at the Hospitality Law Conference how they would handle different situations. Attendees had to decide whether a manager could reject a candidate covered in tattoos and smelling of cigarettes, whether an employee could be terminated for tweeting that she was high at work a few days ago and if an employee could be fired for getting into a fight and yelling racial slurs while off-property.

"The fact that every hand in the room didn’t go up or stay down for each one of these means there’s something we have to make sure that everyone in HR, the hotel and restaurant knows, and that outside counsel knows, is what do you do in these situations," he said.