Bawdy Behavior Outside of Work, Quirky Question # 151

Quirky Question #151

We have several employees who periodically engage in somewhat bawdy behavior outside of work. (Surprise, surprise, sometimes alcohol is involved.) We don’t believe this behavior is consistent with the image our company would like to project. Can we discipline these employees for their conduct (which invariably is reported back to us)? Can we fire them?

Dorsey’s Analysis

Generally, employees’ behavior outside of work is not something for which employees are subject to discipline, let alone discharge.  Having made that general observation, however, let’s consider the various exceptions to that “rule,” which arguably, swallow it completely.

You have not given me too much information regarding the type of “bawdy” behavior in which your employees have engaged.  So let me step back and flag some types of conduct that may be problematic for a company and may subject the employee to discipline or discharge, even if they occur outside of work.

First, did your employees engage in illegal conduct?  If the answer to that inquiry is affirmative, the next question is whether the conduct involved a felony or misdemeanor?  A corollary inquiry, of course, is whether your employees were simply charged with, or were actually convicted of, any criminal offense.  Analyzing an employer’s rights to discipline or discharge its employees for illegal conduct outside of work depends on these factors and several related issues, to which we will turn momentarily.

If your employees engaged in, and were convicted of, felonious conduct, it would be relatively easy to justify their discharges.  Indeed, if the convictions resulted in incarceration, you may need to terminate the employment relationship simply because it will be somewhat difficult for them to perform their job responsibilities from inside a prison.  Even if your employees were not convicted of felonious conduct, it may be quite easy to justify ending the employment relationship.  This would turn on the nature of the offense in which they engaged, their job responsibilities for your company, the impact on their co-employees of bringing them back to the workplace, the impact on your customers of allowing them to continue employment, and a host of other variables.  For example, if an employee’s job responsibilities involved the financial affairs of the company and the offense with which he/she was charged involved a financial crime, it would be easy to demonstrate the nexus between the two and the reason why continued employment would be imprudent.

Another illustration could involve a crime of violence.  If an employee were charged with violent assaultive behavior outside of work, it would be relatively easy to justify terminating that employee.  This does not necessarily have to be the company’s automatic response to this situation, but it certainly is a possibility.  Here, as in other contexts involving criminal conduct, it would be worthwhile to gather relevant information relating to the offense.  For example, was the employee defending him/herself when charged with the crime?  Were there any mitigating circumstances?  Were there any other factors that should enter your calculus when determining the appropriate response?  (In prior Blog analyses, I have described situations in which employers made the decision to rehire former employees, even when they had been convicted of crimes such as murder.  Such decisions are certainly not risk free, however, and should be considered extremely carefully.  See the topic, “Negligent Hiring,” under the “View by Topic” bar on the upper left-hand side of this Blog.  Before allowing an employee convicted of a violent crime to continue working, or bringing back such an employee, evaluate critically whether that employee poses a risk to other employees or members of the public.)

Second, with respect to conduct occurring outside of the workplace, consider whether it involved another employee.  Particularly when combined with the issue addressed above – criminal conduct – this can be a crucial part of the employer’s assessment of how to respond.  For example, if an employee has engaged in domestic abuse of another employee (also a subject I’ve addressed in prior Blog analyses), the way in which the employer responds to this situation can implicate a host of issues, including protective orders, workplace violence, and other serious concerns.

But, let’s not be quite so dark.  What if no illegal conduct was involved?  This would lead me to a third inquiry.  Did the conduct, even if legal, bear directly upon the core product or service provided by the company?  Did it cause your customer base to have serious doubts about the quality or safety or efficacy of your company’s products or services?  If those questions are answered affirmatively, discipline, including discharge, would be the appropriate response.  A relatively recent example of this type of situation that received a good deal of press (and one that arguably implicated criminal conduct as well) was when two employees of a national pizza chain made a fake video of how they made a pizza, while dressed in the uniforms of their employer.  Suffice it to state that some of the “toppings” they placed on the pizza were disgusting.  The two employees then displayed their video on You Tube, and it immediately went viral.  This phony video had a measurable economic impact on the company’s pizza sales in the weeks after the video was published.  Unsurprisingly, the employees were immediately fired.

But, what if the conduct does not implicate any of the concerns raised above.  It’s not illegal.  It does not involve other employees.  It does not implicate any general concerns about the quality, safety or efficacy of your core products or services.  This leads to another question – did the conduct result in any negative publicity for your company?  This consideration is somewhat more subjective and somewhat more difficult to measure.  Where did the conduct take place?  Who witnessed it?  How was it publicized?  What was the nature of the behavior?  Has the company been forced to address the conduct internally?  Has the company been forced to address the conduct externally?  These and other factors can be influential on determining the appropriate company response.

Some of these variables played out in a recent case from the Michigan Court of Appeals, Land v. L’Anse Creuse Public School Board of Education, No. 288612 (May 27, 2010) (unpublished).  Anna Land, a middle school teacher in the defendant’s school district, was terminated from her tenured teaching position.  The reason for her discharge was that, unbeknownst to her, she was photographed simulating an act of fellatio on a mannequin at a bachelor/bachelorette party.  Without her permission, the photographs were posted on a publicly available website.  Once the plaintiff learned of this fact, but after a number of her students had seen the pictures, she requested that they be removed from the website.  Her request was honored.

Some two years later, after the school administration learned of the situation, the plaintiff was suspended and her discharge was recommended.  The school superintendent recommended that she be discharged for “engaging in lewd behavior contrary to the moral values of the educational and school community, which undermined her moral authority and professional responsibilities as a role model for students.”  The matter was presented to an Administrative Law Judge (ALJ) who found that there was a reasonable and just cause to terminate the teacher.  She appealed to the State Tenure Commission, which reversed the ALJ’s decision and ordered her reinstatement.  The school board then petitioned to the Michigan Court of Appeals.

The Court of Appeals’ decision involved a careful and thoughtful review of a number of other decisions, from Michigan and other jurisdictions, in which a teacher had challenged his/her discharge from a tenured position.  The court touched on several factors that were highlighted in these other decisions that have far broader appeal than in situations involving the removal of a tenured teacher.  These instructive variables included:

  •  did the conduct adversely affect other teachers [substitute other “employees”];
  • did the conduct adversely affect students [substitute “constituents” or “customers”];
  • what was the temporal proximity, or remoteness, of the events to the discharge;
  • were there any extenuating or aggravating circumstances;
  • what were the motives for the conduct; and
  • what was the likelihood of a reoccurrence of the conduct.

The appellate court summarized some of these variables by focusing on the issue of whether there was a “rational and specific relationship” between the acts engaged in by the employee and a “detrimental effect” upon the school and its students [or the employer and its other employees or customers].  The court further observed, “In all of the cases cited where discipline has been upheld, there has been a nexus between the off-duty conduct and the teacher’s on-duty performance, which justified discipline.”

Affirming the Commission’s decision to reinstate the discharged teacher, the Michigan Court of Appeals stated, “there are no Michigan decisions holding that a teacher’s legal, off-duty, off-premises, conduct not involving students constitutes professional misconduct that renders a teacher unfit to teach.  Petitioner’s conduct, while coarse, was not inappropriate for its adult venue.  . . . The conduct itself lasted approximately three seconds.  The photographs were taken without petitioner’s knowledge, posted without her consent, and were removed from the website approximately two weeks after they became common knowledge.”  Given all of these factors, the court did not believe that discharge was warranted.

The Land decision highlights indirectly several other critical considerations that you should consider when assessing whether your employees should be disciplined or discharged.  First, are your discharge rights circumscribed by statute?  In Land, given the teacher’s tenured status, the discipline was governed by Michigan law relating to procedural and substantive rights afforded teachers in that state.  Note, however, that there may be a number of state statutes that bear upon this issue, depending upon the jurisdiction in which you are operating and the nature of the job involved.

Second, as with any discipline or discharge context, you need to assess carefully whether your employee has any contract rights that could affect your decision.  These rights may emanate from a specific contract negotiated with the employee that delineates grounds for discharge, from an employee handbook that establishes procedural and/or substantive bases for discipline or discharge, or from a collective bargaining agreement.

Third, again as with any discipline or discharge situation, you should evaluate whether the issue has arisen previously and how it has been treated.  You want to assiduously avoid a situation where your company engages in differential treatment for comparable employees engaging in similar conduct, whether that conduct occurs within or outside the workplace.

With those general guidelines, we’d suggest that before you discipline or discharge your employees, you should consider the nature and seriousness of the “bawdy” conduct you reference, and whether, in the words of the Land court, there is a nexus between the off-duty, off-premises conduct and the on-duty job performance which would justify the discipline.  Is there a rational and specific relationship between the bawdy conduct in which your employees engaged and some tangible detriment to your company?

Two final admonitions.  You stated in your question that several of your employees had engaged in the offending conduct (whatever it might have been).  Although more facts are needed to warrant the next observation, it would seem that a uniform response is appropriate.  To the extent that you treat the offending employees differently, you likely are inviting problems.

Finally, do not use the “bawdy” behavior you reference to discharge employees who, otherwise, are not performing.  These kinds of justifications will be exposed for the pretext they are.  If there are performance problems, address them.  If they cannot be addressed effectively, then discipline or discharge your employees.  But, don’t use the off-site, off-duty conduct as the ground for terminating employees who have not been meeting your company’s legitimate performance expectations, absent the existence of the other factors addressed above.

Dorsey & Whitney

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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