Reacting to Employee Off-The-Job Misconduct

shutterstock_146730020A very concerned CEO calls his attorney. He has just learned that several months ago a key employee punched his fiancée, knocking her unconscious. There was a criminal charge that was dismissed, and the couple later married, but a bystander made a video of the incident which has made its way to the company. The CEO has strong feelings about domestic violence – “Can I fire this guy?”, he asks.

But the employee has an employment contract which provides that he can only be fired for “good cause,” (so he is not an employee at-will). If as is usual “good cause” relates only to job performance and criminal convictions, and does not include a more general “morals clause,” the employee probably cannot be fined.

Where employees are protected by a union contract that typically prohibits discharge without “cause,” arbitrators apply a principle that the employer may take off-the-job conduct into account only when it directly relates to the job. For example, a drug abuse counselor who is known to use recreational drugs at parties could be subject to discipline for that reason, but not necessarily for shop-lifting.

Employers must also be careful of reacting to rumor. The employer may hear of an off-the-job incident in which the police were called, but if the employer takes disciplinary action which is resisted by a non-at-will employee, the employer may be hard-pressed to support its position. Under the Connecticut Freedom of Information Act, municipal police departments will not release police reports “consisting of uncorroborated allegations.” So, if the police are called to an incident, but find no willing witnesses, an employer may not be able to obtain a police report to contradict an employee’s denial of wrong-doing.

The law recognizes that employees have a duty of loyalty to their employers, which includes refraining from seemingly private action that can clearly have an adverse impact on their employer’s business. If the drug abuse counselor acquires a bad reputation which diminishes his ability to treat clients, then the off-the-job misconduct has an on-the-job impact, putting the employee in violation of the duty of loyalty. On the other hand, unrelated off-the-job misconduct may best be regarded as the employee’s private affair, and not a matter for adverse employment action.

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