Employee Off-Duty Conduct:
T 2021 Issue 2 |
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here is likely no workplace that does not have some rules of conduct: no sexual harassment, no violence and do not steal are some common examples. Such rules govern not only the way employees interact with each other and their supervisors, but also their conduct toward customers, visitors and the like. Such conduct rules are necessary to the smooth operation of the workplace, and there is no question that those rules apply while at the workplace or working, even if that work takes the employee away from the premises. But what happens when employees are away from the premises and not working? Do the rules still apply? What about off-duty conduct that is not specifically prohibited by a workplace rule? Can off-duty conduct that occurs away from the workplace result in disciplinary action, including termination? In May 2020, Amy Cooper, a resident of New York City, became known as “Central Park Karen” after a video surfaced showing her calling the police claiming that she was being assaulted by an African-American male. Her employer, Franklin Templeton, terminated her almost immediately from her $170,000-per-year job, releasing a statement that it did not tolerate racism of any kind. More recently, following the Jan. 6
by Douglas H. Duerr
insurrection, some participants lost their jobs as their actions became known. Are such terminations legal? What about conduct that does not make national news? What are the rights (or obligations) of the employers and employees in these situations? These questions are important, not only because employee off-duty conduct can have serious consequences in the workplace and for the business itself, but also because acting against an employee for off-duty conduct can also result in legal claims by the employees against their (sometimes former) employers. In fact, in May, Cooper filed a lawsuit against her former employer, stating that it lied in its public statements regarding its actions and defamed her (in addition to claims of alleged discrimination based on her sex and race), and some of those terminated following the insurrection are challenging their terminations in court. While there are federal laws that prohibit discrimination based on certain characteristics (e.g., race, religion, etc.) or on certain activities relating to the workplace (e.g., picketing for higher wages or for collective bargaining), unfortunately, what action an employer can (or must) take against an employee for
