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When an Employer May Punish Off-Duty Conduct

Published:  July 14, 2014

You may have heard about the Florida police officers who recently faced issues at work for their memberships in the Ku Klux Klan. One officer resigned and the other is facing disciplinary action and possibly termination. This has led many to wonder aloud, ”can they do this?”

Put simply, yes. There are occasions when an employer may punish or prohibit an employee’s off-duty conduct, but employers should be careful not to prohibit conduct that is protected by anti-discrimination laws.

One instance where it is allowable for an employer to manage an employee’s off-duty conduct is when there is an actual business loss to the employer attributable to the employee. An example of this, in addition to the one above, is in a case where a bus driver publically identified as a leader of his state’s branch of the Ku Klux Klan. After the bus company terminated the driver, the court determined that this discharge was allowed because a bus boycott would cause substantial harm to the company.

Additionally, an employee’s off-duty conduct may be controlled by an employer where this conduct makes the employee unable to report to work. For example, if an employee is arrested and punished with a jail sentence for assault, the employer may terminate the employee because being in jail would clearly prevent the employee from attending work. As such, the assault is not being punished by the employer; rather, the absence from work resulting from the arrest is being punished.

Finally, an employee’s off-duty conduct can be regulated by an employer when it creates an impediment to productivity. An example of this is an employee making unwanted advances toward a co-worker off the clock that lead to sexual harassment on-the-clock. Although the advances are taking place off-the-clock, the effect of them, along with on-the-clock behavior is interfering with the company’s business.

In order to prevent claims of wrongful termination, employers should contact employment counsel prior to disciplining an employee for off-duty conduct. In addition, employers should make sure their supervisors and managers are up-to-date on training regarding when employees should be disciplined.

If you have any questions regarding employee discipline, please contact any of the attorneys at Royal LLP at (413) 586-2288.