5 minute read
Employee Off-Duty Conduct: Are There No Consequences?
There 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 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
by Douglas H. Duerr
off-duty conduct will almost always depend upon what state you are in and, in some instances, what the conduct is.
A good example of how this works is the use of cannabis: As states liberalize the rules on cannabis use, we are seeing a rise in “cannabis tourism” in which individuals travel to a state allowing recreational use of marijuana (e.g., Colorado), lawfully smoke marijuana (posting about it on social media) and then return home (where smoking marijuana for recreational purposes is not legal) only to face potential termination for violation of their employer’s rules on drug use. If their workplace is not in one of the states that prohibit termination for engaging in legal conduct (e.g., California, Colorado, North Dakota) or for consuming a lawful product (e.g., Illinois, Minnesota, Montana, Nevada, New York, North Carolina, Wisconsin), then they can be lawfully terminated.
While there may be some limitations on the ability to discipline (or terminate) an employee for some types of lawful conduct, there is generally no prohibition against acting against an employee for unlawful conduct. In such instances, as the recent lawsuit by “Central Park Karen” demonstrates, when action is taken based on off-duty conduct, make sure the action is not discriminatory based on a protected characteristic and be careful in what is communicated regarding the action and the reason why. For example, Franklin Templeton allegedly characterized her as racist rather than simply stating that it determined her conduct and the resulting impact on the company’s reputation and the workplace were unacceptable.
Are there instances when an employer might be required to act based on off-duty conduct? The answer is: yes. Title VII of the Civil Rights Act of 1964, and corresponding state laws on employment discrimination, require employers to provide a workplace that is free of unlawful harassment based on race, color, sex, religion and national origin, and there are other laws protecting against age discrimination and other characteristics. Unfortunately, off-duty conduct can have the effect of introducing prohibited harassment based on those characteristics into the workplace. For example, if an employee, while off-duty, begins sending a co-worker sexual emails or uses social media to spread rumors regarding the co-worker’s sexual conduct, even though the conduct is away from the workplace, it has the effect of creating a hostile workplace based on sex – something that the employer is thus obligated to remedy.
So, can the employer act against an employee for off-duty conduct? Maybe, depending upon the nature of the conduct and whether state or federal law protects the conduct. Is the employer required to act based on off-duty conduct? If that conduct implicates the rights of other employees, then probably yes. When considering what you can and should do in these circumstances, make sure you fully understand what conduct the employee engaged in, the impact on the workplace, and the legal rights and obligations you have in the state where the workplace is located. S
DOUGLAS H. DUERR is a partner at Elarbee Thompson, a national labor and employment law firm with an industry practice area focused on franchisees. Learn more at www.elarbeethompson.com.
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