Handling Off-Duty Misconduct

The concept of off-duty misconduct and any on-duty punishment that may occur can sometimes be a slippery slope. While there are plenty of instances of people being fired or reprimanded for their off-duty behaviors, there are also instances of terminated employees fighting for reinstatement under the guise that their off-duty conduct did not impact their on-duty work or the reputation of the company.

Arbitration is often utilized by employees who feel they’ve been penalized or terminated because of off-duty misconduct or behavior. Often such employees argue that their misdeed is not directly correlated to their working hours, or that the behavior deemed as “misconduct” is anything but.

Problems May Arise...

when a company fails to outline what type of off-duty conduct is considered verboten and how employees are to conduct themselves during their off-duty hours. Problems can also arise when an employee punishes or terminates an employee for thoughts or actions that the company deems unsatisfactory, but are not illegal or truly damaging to the company. For example, former U.S. President Hoover was often considered unfit for his job with the FBI because of his personal life, or rumors about his personal life. Truman famously noted that whatever Hoover chose to do with his off-duty hours was none of his concern. More recently an employee for Gould Inc. was reinstated after he was fired for pranks against a former supervisor. It was argued that the off-duty escapades, while menacing, did not impact the company or the individual’s ability to properly do his job.

On the Other Hand 

Employees with high profile positions are expected to uphold the company culture in all public settings. This can lead to legal termination when an employee utilizes their position and speaks in a fashion that is considered contrary to the company’s beliefs.  A Vice President at CBS found herself in hot water after she made comments on social media that were inappropriate in the wake of the mass shooting in Las Vegas. In the fall of 2017, Haley Geftman-Gold was quickly released from her obligations with CBS after her commentary in a public discussion on Facebook came to light. CBS fired Geftman-Gold for professional misconduct and issued a statement noting that Geftman-Gold’s thoughts and feelings were not indicative of the CBS culture. As of the writing of this article, there is scrutiny into the appropriateness of that Geftman-Gold's termination.

This firing is considered lawful by CBS, according to CBS, because they claim the statements of Geftman-Gold could negatively impact the public persona of the business. Because Geftman-Gold was in a high-level position with a very visible company, her statements could be connected to CBS, as a whole. In short, her position in the company makes her "the face" of the organization.

Companies interested in dealing with off-duty misconduct should create policies that outline the type of conduct that is considered inappropriate. When dealing with potential conduct that occurs during non-working hours it’s important to consider how the conduct impacts the company’s public persona,if that behavior negatively affects the employee's ability to effectively work for the company. 

Lifestyle Discrimination Statutes

Additionally, some states have "lifestyle discrimination statutes" that protect employees from having employment consequences for their off-duty activities.  Notably, Connecticut, California, Colorado, New York, and North Dakota, have either statutory or case-law driven obligations to separate off-duty and at-work behaviors.  Obviously, prior to terminating anyone for their off-duty activity, employers should investigate the consequences of the behavior on their workplace and consult a local attorney.

Cite this article: Lynch, N. (2017). Handling Off-Duty Misconduct. Available: https://www.lynchlf.com/blog/handling-off-duty-misconduct/

Twitter: @LynchServiceCo