Can I Fire the S.O.B.? The Perils of Dealing with Off-Duty Misconduct

Authored by Robert S. Seigel

Aug 15, 2017

You are sickened. You own Generic Service Company and you just saw your employee A.B. on television giving a “Nazi salute” and praising Hitler. The media has learned A.B. works for Generic Service Company. You vow to fire A.B. the next day but can you do it without risk? The answer depends on the facts.

The problem of terminating an employee for engaging in conduct away from work is ubiquitous. Recent events have highlighted the issue of inflammatory off-duty public speech, but suppose you learned instead that A.B. was a member of a spouse-swapping club or a member of an infamous motorcycle gang. The list of deplorables is endless and the constellation of possibly relevant facts is nearly infinite.

However, before you fire A.B. for any conduct away from work consider, at the very least, the following factors:

1. Is the conduct constitutionally protected free speech? This is a major consideration for public employers but should be considered even for private employers.

2. Has the conduct resulted in the individual’s arrest and conviction for a crime?

3. Would the conduct violate any law or statute or implicate the company in any violation of a law, statute, or regulation?

4. Has the conduct created an adverse impact on the working environment? For example, has production suffered because of controversy in the workplace over the conduct?

5. Have other employees refused to work with the individual due to the conduct? Have other employees expressed discomfort about working with the individual?

6. Does the law of the State in which you are operating restrict the right of employers to discipline or discharge employees for off-duty conduct?

7. Are the circumstances such that you are particularly sensitive to the conduct or that any reasonable person in the circumstances would be sensitive to the conduct? For example, were your parents Holocaust survivors?

8. Has A.B.’s conduct become publicly associated with the business of Generic Services Company in a manner that has adversely impacted that business?

9. Have you overlooked objectively similar off-duty conduct in which other employees engaged in the past?

10. Is A.B. a member of a class of individuals otherwise entitled to special protection under the law, due, for example to A.B.’s race, age, gender, religion, or national origin?

11. Did A.B. intentionally publicly implicate Generic Services Company in the conduct? For example, was A. B. wearing a jacket bearing the Company logo or insignia at the time?

12. Most importantly, have you consulted with your labor counsel before making any decision concerning A. B.’s job?

The explosion of social media means that conduct away from the workplace is rarely private. Very frequently, employers are now in possession of information concerning employee’s off-duty activities that at one time may have been unknown to the employer. The key to managing the problem of offensive off-duty conduct is to not act precipitously. The attorneys at Lowenbaum Law are available to assist you in navigating the intricacies of this delicate problem.

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