Out of Sight, Out of Mind? When an Employee’s “Off-Duty” Conduct Becomes the Company’s Problem

Growing up, I fondly remember sitting on my grandfather’s couch watching reruns of classic television shows. The original Star Trek, M*A*S*H, All In the Family and The Rockford Files, to name a few.  Hogan’s Heroes was one of our favorite comedies for its sheer silliness, something Grandpa and I always shared.

A regular character on the show named Master Sergeant Schultz was portrayed as a dippy, do-nothing soldier who, in spite of his blind loyalty to command, was routinely hoodwinked by prisoners in the most obvious of ways. Sergeant Schultz, when called out on the carpet by his commanding officer Colonel Klink, nervously reacted to the latest debacle with the quite-believably ignorant, “I hear nothing, I see nothing, I know nothing!”

I am reminded of this memorable one-liner when considering the challenges managers and Human Resources professionals face when presented with examples of off-duty conduct. For example, what if an employee on her Twitter account “likes” or retweets an opinion article endorsing a white supremacist? What if one of your lab workers tests positive for marijuana on a standard drug screen, but has never used marijuana in the office or showed any signs of being under the influence? Or, what if you find out that an employee just cancelled his parking pass in favor of a commuter rail pass because he lost his license following a DUI?

The conduct occurred off-the-clock, not within company walls, and doesn’t affect any other employees or the employee’s job performance. Therefore, as a decision-maker, you can ignore the conduct. “I see nothing. I hear nothing. I know nothing.” That simple, right?

It rarely is. Preferably leveraging the skills, knowledge and experience of your human resources and employment law experts, it is critical to consider, among other questions:

  • Social Media. Does your company have a Social Media Policy? If so, what does the policy require of employees who have a social media presence? How does the employee identify herself on social media? Are her tweets identified as her own opinions? How well-known is her affiliation with your company? Do other employees see these tweets? If so, how do/would they feel? Does the retweet reflect something about her behaviors as an employee?
  • Marijuana Use. Does your company have a Drug-Free Workplace Policy? Does the policy address off-duty conduct? Is the employee in a safety sensitive or regulated position? Is it lawful use of an otherwise banned substance (e.g., for medical treatment of a disability)? Has the employee ever evidenced signs of impairment on the job?
  • Alcohol Abuse. What if it’s an arrest and not a conviction, subject to further due process, and the employee denies being intoxicated? Did the incident occur following a company event? Does your Drug-Free Workplace or Code of Conduct address alcohol-related activity? Has the employee shown previous signs of impairment on the job? Has the employee been treated for alcoholism?

With regard to the legal analysis, there are other matters to consider such as whether there are state or federal laws that may protect relevant activity. For example, some state laws prohibit employers from checking employee social media accounts, particularly as part of the recruitment process. Employee social media dialogue about terms of employment could also be protected concerted activity under the National Labor Relations Act. Notably, some states actually prohibit termination of employment for consuming certain lawful products, such as cigarettes and alcohol. And the federal government regulates drugs through the Controlled Substances Act, under which possessing, buying, or selling marijuana for a medicinal or recreational purpose is a federal crime.

In fact, the scenario is typically much more nuanced than whether it’s a “legal issue” and, accordingly, whether the company can simply terminate employment.

But even if the company has grounds to terminate employment, should it? There may be alternative disciplinary avenues available that proportionately address the seriousness of the issue for the employee and other employees, but allow a performing employee the opportunity to rehabilitate. In your company’s culture, your employees may appreciate the empathy shown to a valued employee experiencing a personal challenge. Perhaps the company should consider its drug testing procedures to ensure that it is testing only for regulated, safety or fiduciary duty-centric positions, particularly where marijuana use outside the workplace is becoming more socially and legally accepted.

Of course, there are those circumstances that demand swift and decisive action to protect the integrity of the company’s policies and risk exposure. But, be consistent, thorough and clear. Invoke discipline based upon your examination of the facts, policies/law and “big picture” impact upon the business, its employees and its customers. In so doing, you will be better-positioned to avoid being labeled the “Sergeant Schultz” of employee relations.

© 2017 Palladino Law LLC. All rights reserved.

Previously: Addressing and Preventing Workplace Sexual Harassment: It’s About Leadership

Posted: January 12, 2018 in: Employee Relations, Employment Policies, Investigations