NFL star Ray Rice was the subject of a recent media storm when he was suspended by the NFL due to allegations of domestic violence. Many have questioned the response by the NFL and the Ravens’ ownership’s to the Rice saga. This incident provides an opportune time to consider an employer’s obligations when it comes to an employee’s non-work related misconduct and underscores the debate over public and professional spheres. Can an employer discharge an employee for private conduct that has nothing to do with the job? How can an employer discipline an employee for conduct outside of the workplace without running the risk of suit?
Most employees are “at will.” As such, an employer may terminate that worker, at any time for almost any reason, be it as serious as domestic violence or as trivial as arriving to work a few minutes late. An employee does not have to commit a serious infraction in order to be disciplined or fired. Of course, laws exist that protect employees from improper termination such as discrimination or retaliation. On the other side of the coin, the employee-at-will may quit at any time, for any reason. The law is so designed to permit for workforce flexibility for both employers and staff.
If an employee has a contract, the employer must abide by the terms of the contract, which often limit circumstances under which the employee can be fired. Unionized employees also typically have more power against capricious firing.
What is an employer’s best path when employees are involved in violent behavior that occurs outside of the workplace? Some companies have formal policies addressing such violence, while others address the issue through a broader code of conduct, with some even indicating that arrests can be grounds for termination. An employer could be at risk for a wrongful termination suit if the employer cannot prove that the alleged incident had any impact on the workplace. Businesses often have more disciplinary leeway when the employee is the face of the company or a highly placed executive at the firm; often these individuals have employment agreements that outline with great specificity all the behavior and public acts that could lead to termination for cause. In those cases, employment lawyers say that even violence issues unrelated to the workplace could be grounds for termination.
Another consideration is the message your business sends to employees about the leaders the company promotes and supports. If someone who has committed crimes outside of work is kept in power, this could sully the company’s reputation to the outside world and send a negative message to your team about the values of your business, corroding the culture.
When it comes to dealing with off the clock behavior of your own employees, it is important to balance the need to create a positive workplace climate with the need to send a message, both publicly and internally, that your company has high standards and ethics. Here are some tips to strike the right balance between the two:
1. Regulate with regularity. Act consistently when punishing employees. Showing leniency in one situation, then dismissing a different employee for a similar misdeed, can be problematic, particularly if that second employee is a member of a protected class. Written policies can help to implement this strategy.
2. Manage with moderation. “At-will” status is not grounds for draconian measures. Even if you have at-will employees who you are free to fire, for no reason at all, an employer should ideally conduct an appropriate investigation, and retain the employer-employee relationship in some fashion until the matter is resolved. At-will status is not a license for improvident, impulse action. Conduct an investigation and obtain all sides of the story.
3. Remember reputation. While an employee’s conduct may reflect poorly on the company, a business’ reputation also includes the process by which a company decides whether to keep employees who are accused of wrongdoing. This protocol should also take into consideration the employee’s tenure with the firm, to make sure commitments have not been made to that person over time. Your business depends on fairness and legitimacy; don’t let erratic firing practices give your brand a bad name.