How Off Duty Conduct Can Cost You Your Job

by Renee Mielnicki, Esquire

By now we are all familiar with the tragedy that happened in Charlottesville, Virginia over the weekend. As a recap, white nationalists assembled in Charlottesville to protest the city’s plan to remove a statue of Confederate General Robert E. Lee from a local park. What started as a protest turned into a firestorm of hatred and violence leaving one dead and many injured.

Many of us were shocked at the images we saw on television. You would think that in 2017, we, as a nation, were far past this type of thinking and behavior, but this weekend has proven we are not. In fact, one could argue that this display of hatred has set us back decades. I know I, myself, started wondering, who are these people? Where does someone who belongs to such extreme racist organizations even work today? I mean, who would hire them? Does the employer even know they belong to such organizations? Probably not. As I listened to the radio and watched television coverage of this story, I learned that these extremists could be working right alongside of you and me and we would have never known it. I think a lot of people were probably shocked to learn that those involved were people they would never have expected.

Given the nature of my profession, I started thinking about the types of consequences this could have on the careers of the people involved. If one of my clients called to tell me that one of their employees was seen on television carrying a torch or white supremacist materials, wearing extremist garbs, involved in an act of violence or spewing racial slurs, I already know the advice I would give. It’s true that this conduct did not occur at work. However, this event was covered nationwide on television for the whole world to see. These images are not going to go away anytime soon, especially those on the internet. Continuing to employ a person that has such hatred, rage and violent tendencies carries several risks for an employer. First and foremast is the threat to the reputation of the employer. All employers are in the business of selling something that they want someone to buy. A continued association with such an employee could cause consumers to not want to buy from the employer anymore. Business would ultimately be lost and a reputation permanently damaged. Second, one could also argue that such behavior might suggest that the employee is a potential danger to the safety of other employees in the workplace. Third, bringing such an employee back to work after engaging in this type of behavior is likely to cause conflict with other employees, including the potential for workplace harassment.

I often counsel clients on terminating employees for off-duty conduct and their question to me is always the same. “Am I allowed to do that?” In most cases, yes you can. This past weekend highlights the type of circumstances where such would be appropriate. Of course, before I made any final decisions I would investigate the matter. I would make sure the video or photos that I was relying upon were in fact the employee in question. In addition, I would make sure that state law did not prohibit me from firing an employee for off-duty conduct (and most don’t, by the way). As long as my investigation confirmed that the person in the video or picture was actually the employee in question, I would advise them to immediately move to sever the employment relationship (of course, I’d still double-check state law on off-duty conduct — but remember in most instances there aren’t any).

I would also give the same type of advice to an employer who was in the midst of hiring one of the participants and stumbled across a photo or video of the person from this past weekend. The same issues would be at hand. Hiring this type of person could tarnish the company’s reputation, lead to potential workplace violence and create huge conflicts within the organization. Denying employment for these reasons would also be legal.

As both an American and a human being, I feel sad that this happened. I wondered if these people gave any thought beforehand to the repercussions that this type of conduct could have on their lives and jobs. Too late now because the damage is already done, not only to them (not that there is any empathy for that) but also to the people they hurt in the process. But on a positive note, employers do not have to, nor should they, put up with this type of behavior, even if it didn’t occur on the job.

Employees need to beware that what you do off duty can have serious implications in your career and can ultimately cost you your job.

If you are an employer with questions, please contact East Coast Risk Management at 724-864-8745.

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