Two hourly employees leave work and head to the local watering hole. After a couple of beers, an argument begins and the two end up in a fight. Both are arrested and charged with disorderly conduct. Both make bail and show up for work the next day, black eyes and all. May the employer discharge the two employees because of the off-premises fight?
The employer operates a day care. An employee is arrested and charged with criminal sexual conduct involving a child. The employee pleads not guilty and is released on bond. May the employer discharge the employee?
While on vacation, the president of the company is arrested while out of town for solicitation of sex (gosh, that policewoman looked liked a prostitute!). He pleads no contest to a misdemeanor charge, pays his fine and comes home. Unfortunately, The Wall Street Journal picks up on the story and runs an article about "Executive Bad Boys." A terminable offense? What if, instead of the president, the accused is an hourly employee and the only news coverage is on the back page of the local paper?
Many would say that what an employee does on his own time is his own business. But this is not always true. Whether the employer may discipline or discharge an employee for off-duty misconduct depends on a number of factors.
Who Is the Employer? A governmental employer faces significant restrictions when it comes to discipline for off-duty misconduct. A public sector employee enjoys a number of constitutional rights with respect to his governmental employer. These include the right of association, religion and free speech. These constitutional rights generally do not apply to private sector employees.
A governmental employee stands up at a public forum and says his employer, the local county, is wasting tax dollars and the voters should do something about it. A private sector employee working for a gun manufacturer stands up at a public rally and says that all gun manufacturers should be put out of business. The local county will face a serious legal challenge if it discharges its employee. But the gun manufacturer may face no legitimate legal challenge.
Is the Employee At Will? An at-will employee may be discharged at any time, with or without cause. In general, if an employer does not like an employee's off-duty activities, the employer may proceed with an at-will termination.
Who isn't at will? Most unionized employees may be discharged only for cause. Most arbitrators will not uphold a discharge of a union-represented employee for off-duty misconduct unless the employer can show a significant nexus to the employment.
Did the Employee Engage in Protected Activity? The law protects certain off-duty activities by employees. These include advocating unionization, filing a workers' compensation claim and whistle-blowing (e.g., reporting the employer to OSHA or another governmental agency).
Do an Employer's Policies Impact on Discipline for Off-Duty Misconduct? Absolutely. A policy statement that an employee's activities on his own time are his own business seriously limits the employer's right to take action. Alternatively, a statement on expected professionalism—both on and off duty—may significantly increase an employer's position. The most important policy statement is at-will employment. Other important policy statements may prohibit fraternization with subordinates, use of unlawful substances and off-duty illegal conduct.
Balancing the Factors. There is no bright line which defines when an employee may be discharged for off-duty misconduct. But there are factors which limit and support the right of an employer to discharge for off-duty conduct.
Tread Carefully. Employers should carefully approach this issue. An analysis of all of the factors is wise. In the end, perhaps the most important question is, "How does this conduct affect the employer?"
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Louis C. Rabaut is a partner in the Grand Rapids office of Warner Norcross & Judd LLP. He specializes in labor & employment law and has handled litigation involving trade secrets, covenants not to compete, wrongful discharge, and discrimination claims. Warner Norcross & Judd is a full-service law firm with 180 attorneys in four offices throughout Michigan: Grand Rapids, Holland, Muskegon and Metro Detroit. Lou may be reached directly at 616.752.2147. Because each business situation is different, this information is intended for general information purposes only and is not intended to provide legal advice.