05 Jun Off-Duty Conduct Employee Policies
One of the more interesting questions that I get as an attorney is what are the circumstances when an employee can be sanctioned, disciplined, or even terminated for off-duty conduct.
A couple of months ago I was at a networking event and someone was speaking about how somebody had cut him off in traffic and I think caused an accident. This jerk (although this speaker used a far more anatomically descriptive term) was wearing a company shirt and behaving in a not very professional manner. In addition to cutting someone off and creating an accident, the conduct of the employee wearing the shirt was blatantly not professional or nice at all.
I started thinking of this story as I read a case out of New Jersey in which the owner of a plumbing company fired his son (who happened to be wearing a company shirt) for urinating on a memorial for a child who had passed away from cancer. One of his not-so-bright friends took a video of the incident and posted it on social media, thus putting the matter in the public eye and into the press. The boss (dad) was left with no choice but to fire the son. The question became: is this a legal firing?
Many clients ask me if they can fire an employee for off-duty activity. The answer is that yes, you can, but you need to be very clear about what is going on. An employer is within their rights to hold employees accountable for their off-duty behavior, particularly if that behavior is conducted while using company property or wearing company apparel. These kinds of things do come back to impact the ability of the goodwill of the business. (To this day, I remember the name of the company cited in the networking event I attended and I don’t do business with them.)
If you are unsure of the facts, conduct an investigation. It is not a good idea to fire somebody without being sure of the ground you are citing to fire the person. You do have to be cautious that a) the punishment fits the crime and that b) that you are not excluding any employees from a policy.
In this New Jersey case it was the owner’s son, and it’s obvious that the boss was not afraid to make a strong statement by firing his son. Certainly, the activity the son engaged in was criminal defacement. But the stupidity of the act was compounded many times over due to the publicity of the act.
While having an off-duty conduct policy is fair, it is a borderline question when it comes to what kinds of behaviors can be sanctioned. Illegal behavior that takes place off duty can be sanctioned by termination. For example, if someone is drunk driving and they injure someone while in a company shirt, that is illegal behavior and means for termination. Vandalism or public indecency also can and should be sanctioned. Employees should understand that illegal behavior can lead to consequences in the workplace, even if that behavior is off duty.
There are some states that have off duty conduct laws so that if the behavior is simply reprehensible but not illegal, generally conduct laws will prohibit a termination. But, those off-duty conduct laws do not prohibit termination for illegal behavior.
It is important to note the culture of your company and what you as a business owner want to foster. One element of company culture is accountability. You want to have a culture where everybody is accountable to the company, and to each other. You want employees that provide as a good example by acting as a responsible citizen. You want employees who will professionally represent the company no matter where they are. Especially while wearing company apparel, you should expect and demand of your employees to be model professionals. You as the business owner should be accountable and model that behavior as well. You should be accountable to your company, your employees, and yourself, and thus be a leading example for the type of company culture you want to grow.
One final statement: if you’re going to be stupid, don’t record it on social media. That stuff lasts for forever.