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Off Duty Conduct –
When is it Misconduct
or a Conflict?
By
Kathleen Maylin
Jackson Lewis LLP
League of California Cities
City Attorneys Department
2010 Annual Conference
League of California Cities
City Attorneys Department 2010 Annual Conference
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Off Duty Conduct – When is it Misconduct or a Conflict?
I.
Introduction
Because of complexities specific to the public sector work environment, such as the
public‟s interest, media attention, collective bargaining relationships, and political interests,
public employers often must respond to the off-duty conduct of employees when that conduct
intersects with the workplace in some adverse manner. The employer then must make a
determination of what can and should be done, if anything, in each instance.
The good news for the public employer is that generally it is easier for a public agency to
dismiss or discipline an employee for off-duty conduct than it is in the private sector. Arbitrators
tend to protect the government employer‟s reputation and mission, citing the need to maintain
public trust in government agencies. Nonetheless, public employers in California must proceed
with caution before taking action against an employee because of off-duty conduct. Regulating
and responding to outside or non-work activities may result in an infringement on the
individual‟s constitutionally protected speech, privacy rights, lawful off-duty activities, EEO
protections, and other protected rights.
II.
Constitutional Protections
A.
Free speech
While freedom of speech under the First Amendment is enjoyed by public employees,
that freedom is not absolute. Pickering v. Bd. of Ed. (1968) 391 U.S. 563, 574. Courts have
recognized that the government has a vital interest in maintaining governmental effectiveness
and efficiency. Branti v. Finkel (1980) 445 U.S. 507, 517. As a result, the employee‟s interest
in free speech may at times have to yield. Id.
1.
The Pickering Balancing Test
In Pickering, the Court established a balancing test for analyzing public employees‟
freedom of speech claims. The Court balanced the interest a teacher had in commenting on
matters of public concern against the interest the state had in efficiently providing public
services. Under Pickering, a public employee‟s speech may not be protected in two situations.
First, the speech will not be protected if it does not touch on a matter of public concern. Second,
even if the speech is about a matter of public concern, the speech will not be protected if the
government‟s interest in efficiency outweighs the employee‟s interest. Pickering v. Bd. of Ed.,
supra, 391 U.S. at 568.
2.
Speech Concerning a Personal Matter is Not Protected
To obtain First Amendment protection, the public employee‟s speech must be about a
matter of public, not private, concern. In Pickering, a school board fired a teacher after he
criticized how the school board handled its finances. The Court found it was a matter of public
concern because the public voted on whether to provide funding to the District, and because open
debate on the topic was necessary in order to have a well-informed electorate. Id. at 571-72.
In Connick v. Myers (1983) 461 U.S. 138, the Court clarified Pickering by holding that
when an employee speaks upon matters only of personal interest, a personnel decision based on that
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Off Duty Conduct – When is it Misconduct or a Conflict?
speech does not violate the First Amendment. Id. at 147. The Court distinguished that general
public interest is not the same as the heightened standard of “public concern.” In Connick, a
disgruntled assistant district attorney distributed a questionnaire at work that asked about office
morale, and she later was terminated for insubordination and other reasons. Only one of the
questions in the questionnaire was of public concern, which asked whether other employees felt
pressure to support political campaigns. Although the Court found this one question raised a matter
of public concern because it is unconstitutional for employers to force employees to adopt certain
beliefs, the rest of the questionnaire was not of public concern because it only pertained to the
employee‟s personal problems with management. Id. at 148. As a result, the employee‟s discharge
did not offend the limited First Amendment interest raised in her questionnaire. Id. at 153.
3.
The Government’s Interest in Efficiency May Outweigh the
Employee’s Interest in Free Speech
Even if a public employee‟s speech constitutes a matter of public concern, it may not be
protected. The second part of the Pickering test evaluates the government‟s interest in
disciplining the public employee. In Connick, the Court applied that test and held that the state‟s
burden of justifying the termination of a public employee varies depending on the nature of the
employee‟s expression. Connick v. Myers, supra, 461 U.S. at 150.
In Fazio v. City & County of San Francisco (9th Cir. 1997) 125 F.3d 128, the Ninth
Circuit set criteria by which the government‟s interest in efficiency is weighed against the
employee‟s interest in free speech. Specifically, whether the employee‟s speech: 1) impairs
discipline or control by superiors; 2) disrupts co-worker relations; 3) erodes a close working
relationship premised on personal loyalty and confidentiality; 4) interferes with the speaker‟s
performance of her duties; and 5) obstructs the routine operations of the office. Fazio v. City &
County of San Francisco, supra, 125 F.3d at 1331, citing Hyland v. Wonder (9th Cir. 1992) 972
F.2d 1129, 1139. The employer‟s burden of proving these factors will vary depending on the
nature of the employee‟s speech. The less the speech involves a matter of public concern, the
less the government has to show in order to justify the termination. Connick v. Meyers, supra,
461 U.S. at 152.
Because the employee‟s speech in Pickering constituted matters of public concern, the
employer‟s burden was higher. The Court found that the school board did not meet its burden
because the teacher‟s relationship with the school board did not require the teacher‟s loyalty, and
the teacher‟s statements did not disrupt the working environment. Pickering v. Bd. of Ed., supra,
391 U.S. at 569-70. In Connick, the Court held that when an employee‟s complaint about an
office policy arises out of a dispute concerning the application of the policy to the employee, the
employer‟s burden is lower. Connick v. Myers, supra, 461 U.S. at 152. The Court found that the
employee‟s speech adequately disrupted the office and impeded her ability to fulfill her job
responsibilities. Id. at 151. The Court noted that the government must retain significant
discretion to make management and personnel decisions. That discretion includes the ability to
remove insubordinate employees because retaining problematic employees can hamper the
efficiency and effectiveness of a public agency. Id.
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Off Duty Conduct – When is it Misconduct or a Conflict?
4.
Speech Regarding Official Duties is not Protected
The U.S. Supreme Court further clarified in Garcetti v. Ceballos (2006) 126 S.Ct. 1951
that courts will only engage in the Pickering balancing of public and private interests when the
government moves to penalize speech that public employees utter as citizens. When public
employees make statements pursuant to their official duties, they are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate their communications from
employer discipline. In Garcetti, a deputy district attorney alleged he was subjected to adverse
employment actions in retaliation for engaging in protected speech (for writing a disposition
memorandum in which he recommended dismissal of a case on the basis of purported
governmental misconduct). Since he was not speaking as a citizen when he wrote his memo, the
speech was not protected by the First Amendment.
5.
Recent Cases Upholding Public Employer Terminations for
Inappropriate Speech or Conduct
The Ninth Circuit recently applied Connick, Pickering, and Garcetti in a termination
case, reinforcing that a public employer may restrict speech as necessary for the employer to
operate efficiently. In Richerson v. Beckon (9th Cir., June 16, 2009, No. 08-35310) [nonpub.
opn.], a public school teacher maintained a publicly-available blog which, according to the
Court, contained “several highly personal and vituperative comments about her employer, union
representatives, and fellow teachers.” The following is one such blog entry about her
replacement:
Save us White Boy!
I met with the new me today: the person who will take my
summer work and make it a full-time year-round position. I was
on the interview committee for this job and this guy was my third
choice . . . and a reluctant one at that. I truly hope that I have to eat
my words about this guy . . . But after spending time with this guy
today, I think Boss Lady 2.0 made the wrong call in hiring him . . .
He comes across as a smug know-it-all creep. And that‟s probably
the nicest way I can describe him . . . He has a reputation for
crapping on secretaries and not being able to finish tasks on his
own . . . And he‟s white. And male. I know he can‟t help that, but
I think the District would have done well to recruit someone who
has other connections to the community . . . . Mighty White Boy
looks like he‟s going to crash and burn.
Unsurprisingly, the blog spurred complaints and disruption within the district. Because
of the blog comments, the district removed plaintiff from her position as an instructional coach
and demoted her to a lower position in the district. Plaintiff sued, arguing that her transfer
violated her speech rights. The Ninth Circuit affirmed summary judgment in favor of the
district. The Court found that Plaintiff spoke as a private citizen in her blog, and thus the
Pickering balancing test did not apply. Even if the Pickering balancing test was applicable, since
some of her writings touched on matters of public concern, the Court held that the district‟s
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Off Duty Conduct – When is it Misconduct or a Conflict?
interests in promoting harmony among coworkers, fostering close working relationships where
loyalty and confidence are necessary, and managing the resulting interference with Plaintiff‟s job
duties outweighed Plaintiff‟s speech rights. “Common sense indicates that few teachers would
expect that they could enter into a confidential and trusting relationship with Richerson after
reading her blog.” Richerson v. Beckon, supra.
In Snyder v. Millersville Univ. (E.D. Pa., December 3, 2008, No. 07-1660) [nonpub.
opn.], the court held that a university did not violate a student teacher‟s free speech rights by
terminating her assignment due, at least in part, to unprofessional content on her MySpace page
which included a photo of the student teacher wearing a pirate hat and holding a plastic cup with
a sign that read “drunken pirate”.
In Spanierman v. Hughes (D. Conn. 2008) 576 F.Supp.2d 292, the court held that school
administrators did not violate a teacher‟s free speech rights by refusing to renew his contract due
to content on his MySpace page which he shared with students, because the teacher‟s online
exchanges with students showed an unprofessional rapport with students (including commenting
on whether he was “getting any”).
In City of San Diego v. Roe (2004) 543 U.S. 77, the court held that terminating a police
officer who participated in and sold sex videos on the internet did not violate the First
Amendment since the employee took deliberate steps to link the videos to police work, the
speech did not implicate a matter of public concern, and the conduct was widely broadcast.
In Locurto, Walters, and Steiner v. Giuliani (2nd Cir. 2006) 447 F.3d 159, the court
upheld the termination of firefighters and police officers who participated on a parade float that
featured mocking stereotypes of African-Americans. The court found the action did not violate
the First Amendment because defendants fired plaintiffs out of a reasonable concern for
disruption, and their interest in maintaining a relationship of trust with the community members
outweighed plaintiffs‟ First Amendment interests. Id. at 180-183.
In Pappas v. Giuliani (2d Cir. N.Y. 2002) 290 F.3d 143, a New York court held that a
police department did not violate a police officer‟s First Amendment speech rights when the
department terminated the officer for anonymously sending bigoted racist anti-black and antiSemitic leaflets while off duty. The court applied the Pickering balancing test, and held that an
individual police officer‟s right to express his personal opinions was outweighed by the risk of
harm to the police department. Id. at 147. The court clarified that government employers are
allowed to sanction lower level employees when their statements have the capacity to harm the
employer‟s performance of its mission, even though high-ranking policy-makers have a higher
likelihood of harming the accomplishment of the entity‟s mission. Id. at 148.
B.
First Amendment Protection of Association
The U.S. and California Constitutions afford privacy protections to matters relating to
marriage, family, sexual relations, and associational relations. Despite these constitutional
protections, courts have upheld employer discipline based on public employee associations in
specific instances.
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Off Duty Conduct – When is it Misconduct or a Conflict?
1.
Romance between co-workers
Given the amount of time employees spend at work, it is inevitable that employees will
develop personal and romantic relationships with one another. There are several reasons an
employer has an interest in monitoring and/or regulating employees‟ relationships in the
workplace:
Preventing conflict of interest issues
Preventing claims of sexual harassment, hostile work environment and retaliation1
Preventing claims of favoritism
Maintaining employee morale and a sense of fairness
One California court held that an employee does not have a reasonable expectation of
privacy in having an intimate relationship with a subordinate where the employer has an express
policy “requiring that any supervisor who wanted to maintain an intimate relationship with a
subordinate bring the matter to the attention of management to allow management the
opportunity to take appropriate action to avoid the potential conflict of interest.” Barbee v.
Household Automotive Finance Corporation (2003) 113 Cal.App.4th 525, 533.
In a partially unpublished decision, the Court in Sanchez v. County of San Bernardino
(2009) 176 Cal.App.4th 516 reinforced the notion that personal employee relationships, which
ordinarily would be private matters, become matters of public concern if they raise potential
work-related conflicts of interest. In Sanchez, plaintiff was a high-level official who negotiated a
new Memorandum of Understanding with one of the employee associations. She thereafter
began an intimate relationship with the president of the association. The County‟s personnel
rules included a conflict of interest policy stating, “No official or employee ... shall have a
financial or other personal interest or association which is in conflict with the proper discharge of
official duties or would tend to impair independence of judgment or action in the performance of
official duties. Personal as distinguished from financial interest includes an interest arising from
blood or marriage relationships or close business, personal, or political association.” When
Sanchez‟s supervisor learned of the relationship, he required her to resign. Because of the
conflict of interest issue, the Court found that the relationship was not a private matter, but one
of public concern.
Arbitrators also have upheld rules restricting whom employees may marry because of
special circumstances even in the private sector. For example, in Robertshaw Control Co., 55
LA 283, 70-2 ARB ¶ 8756 (Bloch, 1970), an arbitrator upheld a marital restriction on the basis
that an employee might have divided loyalties as between the company and a relative. In
National Tea Co., 69 LA 509 (Kelliher, 1977), an arbitrator upheld an employer‟s rule because
of the possible resulting carryover of marital disharmony to the workplace.
1
Indeed, in one case, Miller v. Department of Corrections (2005) 36 Cal.4th 446, the court found that a plaintiff
may establish a hostile work environment claim even in the absence of unwanted comments and advances. In that
case, the warden‟s favoritism towards his many paramours conveyed a demeaning message towards other women
(who were not benefitting from the favoritism) sufficient to support a hostile work environment claim.
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Off Duty Conduct – When is it Misconduct or a Conflict?
2.
Personal relationships with third parties
Public employers may face larger obstacles when trying to regulate employee
relationships with third parties, even though public employee relationships with third parties can
be just as detrimental to the government‟s reputation or efficiency. Last year, a town council
fired its city manager after learning his wife was a porn star. Although the council argued they
did not fire the city manager because of his wife‟s occupation, they explained the action was
taken because the wife‟s profession brought an inaccurate image to the town. “When you
become a public figure you are held to a different level of scrutiny and ethics,” said one
councilmember. (“Fired for Marrying a Porn-Star – The Aftermath.” July 24, 2009.
http://www.cbsnews.com/8301-504083_162-5185844-504083.html.) Although many public
employers can empathize with the town council, disciplining an employee for an off-duty
personal relationship may be considered discriminatory or a violation of an individual‟s right to
privacy.
In Via v. Taylor (D. Del. 2002) 224 F. Supp. 2d 753, the court deemed it unlawful for a
public employer to terminate an employee of a state department of corrections as a result of her
off-duty relationship with a paroled former inmate. The department of corrections had
established a “Code of Conduct” that prohibited employees from having relationships or sexual
contact with offenders, both incarcerated and non-incarcerated. The court applied a heightened
standard of review to the “Code” and concluded that it was not substantially related to the
department‟s goal of ensuring discipline and security within the prison, and thus application of
the policy was unconstitutional on the bases of association and privacy.
In Piscottano v. Murphy (2d Cir. 2007) 511 F.3d 247, the Second Circuit upheld a
department of corrections discipline of former employees on the account of their membership in
and association with the Outlaws Motorcycle Club, an organization for motorcycle enthusiasts
which also was notorious for members that engaged in violent criminal activity. The Court
applied the Pickering test and dismissed the former employees‟ freedom of expression claims.
The court held that the former employees‟ involvement with the Outlaws had the potential in
several ways to disrupt and reflect negatively on the department‟s operations, and the
department‟s interest in maintaining the efficiency, security, and integrity of its operations
outweighed the associational interests of those employees. Id. at 278. The Court also held that
membership in an organization that was a large or non-selective group, such as the Outlaws, did
not qualify as an “intimate relationship” that warranted associational protection under the
Constitution.
In Hamilton v. City of Mesa (Ariz. Ct. App. 1995) 916 P.2d 1136, an Arizona court
upheld a personnel rule that an employee may be dismissed for conduct that will bring discredit
or embarrassment to the City. A 17-year police officer was terminated when he was discovered
to have engaged in off-duty sexual conduct with his subordinate‟s wife, because that conduct
clearly had the effect of bringing discredit or embarrassment to the City in violation of the rule.
Id. at 1144.
Bottom line: beware when developing policies concerning the regulating of employee
relationships in the workplace. Employers must consider statutory protections in addition to
constitutional privacy and other concerns. For instance, California Labor Code sections 96(k)
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Off Duty Conduct – When is it Misconduct or a Conflict?
and 98.6 provide additional protections for lawful off-duty conduct. See below for further
analysis of State law issues. In addition, the Fair Employment and Housing Act prohibits marital
status discrimination. See Cal. Gov. Code § 12940(a).
C.
Privacy
The word “privacy” is not mentioned anywhere in the United States Constitution The
U.S. Supreme Court nevertheless has declared on multiple occasions that the Bill of Rights
impliedly forbids governmental intrusion on various “zones of privacy.” The most frequentlyinvoked federal constitutional provision in the privacy area is the Fourth Amendment which
prohibits unreasonable searches and seizures by the government. Courts have interpreted this
prohibition to grant public employees limited rights of privacy in their workplace. O’Connor v.
Ortega (1987) 480 U.S. 709.
The California‟s Constitution contains an explicit right to privacy that operates against
private and governmental agencies:
All people are by nature free and independent and
have inalienable rights. Among these are enjoying
and defending life and liberty, acquiring,
possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.
Cal. Const. article 1, section 1. “Constitutional privacy interests are not absolute, however.
They must be balanced against other important interests.” Gilbert v. City of San Jose (2003) 114
Cal.App.4th 606, 613.
Given the great variety of work environments in the public sector, the question of
whether a search or seizure is reasonable depends on the specific context and turns on the
employee‟s reasonable expectation of privacy.
1.
Off-duty “Sexting”
In City of Ontario v. Quon, the U.S. Supreme Court will determine whether, under the
Fourth Amendment, the City‟s Police Department‟s employees should expect that personal text
messages they send and receive on police pagers are private, where the Department‟s official
“no-privacy” policy may conflict with its informal policy of allowing some personal use of
pagers.
The underlying suit was filed by Sgt. Jeff Quon, his wife, his girlfriend, and another
police sergeant after one of Quon‟s supervisors audited his messages and found that many of
them were sexually explicit and personal in nature. The Ninth Circuit sided with the police
officer, ruling that Quon had a reasonable expectation of privacy regarding messages stored on
the service provider‟s network, and that the government‟s search was unreasonable under the
circumstances. The Court cited the Supreme Court decision in O'Connor v. Ortega (1987) 480
U.S. 706, 715, 717 (while searches and seizures “of the private property of their employees . . .
are subject to the restraints of the Fourth Amendment . . . the operational realities of the
workplace . . . may make some employees' expectations of privacy unreasonable.”). The Court
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Off Duty Conduct – When is it Misconduct or a Conflict?
relied on its own decision in United States v. Forrester (9th Cir. 2008) 512 F.3d 500 and
analogized that text messages (and presumably e-mails) are similar to letters or packages or
telephone communications, for which there is no reasonable expectation of privacy as to the
identity of the sender or recipient, or the external writings on an envelope, or the telephone
numbers called to or from; however, in all cases, there was a reasonable expectation of privacy
with regard to the subject matter of the communications.
The Supreme Court‟s ruling in Quon will determine whether public employees have a
reasonable expectation of privacy in this particular circumstance. However, public employees
are already protected through workplace privacy rights arising from common law and other
statutes.
2.
Tracking employees through GPS
Global Positioning Systems (GPS) are more and more common in vehicles and mobile
phones. In 2009, the Boston Globe reported that “GPS tracking devices installed on
government-issued vehicles are helping communities around the country reduce waste and abuse,
in part by catching employees shopping, working out at the gym, or otherwise loafing while on
the clock.”2 In Islip, New York, “[t]he use of a Global Positioning System has led to firings,
stoking complaints from employees and unions that the devices are intrusive, Big Brother
technology. But city officials say that monitoring employees‟ movements has deterred abuses,
saving the taxpayers money and lost productivity.”
Although this would be a matter of first impression by the courts, this type of monitoring
is very risky for public employers. California Penal Code section 637.7 prohibits persons or
entities from using “an electronic tracking device to determine the location or movement of a
person” unless the “registered owner, lessor, or lessee of a vehicle has consented to the use of the
electronic tracking device with respect to that vehicle.” In this context, “electronic tracking
device” means any device attached to a vehicle or other movable thing that reveals its location or
movement by the transmission of electronic signals. Cal. Penal Code § 637.7(d). The section
does not “apply to the lawful use of an electronic tracking device by a law enforcement agency.”
Cal. Penal Code § 637.7(c). Under the provision, GPS monitoring of employees is not lawful
when the employee is using his or her own vehicle unless the employee consents. If the
employee is using an employer-issued vehicle (i.e., the employer is the registered owner, lessor,
or lessee), it appears that GPS monitoring may be permissible, subject to constitutional
considerations, and provided that employees‟ off-duty movements are not monitored (such as
rest and meal periods and if the employee uses a “take-home” vehicle).
2 Frank Eltman, Associated Press, November 16, 2007, Islip, N.Y., The Boston Globe,
http://boston.com/news/articles/2007/11/16/gps_devices_on_the_rise_to_monitor_employees
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III.
California Labor Code Section 96(k)
California law specifically protects an employee‟s legal off-duty activities. Labor Code
section 96(k), which became law in 1999, provides that:
The Labor Commissioner and his or her deputies and
representatives authorized by him or her in writing shall, upon the
filing of a claim therefor by an employee, or an employee
representative authorized in writing by an employee, with the
Labor Commissioner, take assignments of:…(k) Claims for loss of
wages as the result of demotion, suspension, or discharge from
employment for lawful conduct occurring during nonworking
hours away from the employer's premises. (Emphasis added.)
Labor Code section 98.6, amended in 2001 to provides new actions and remedies for
employees and applicants, and prohibits discrimination against an applicant or employee because
he or she exercised any right afforded him or her that is specifically protected by section 96(k).
There is an exemption from section 98.6 if the employer and the employee have entered
into a "signed contract" to protect the employer against any conduct by the employee that is in
direct conflict with the employer's "essential enterprise-related interests." An employee
handbook or personnel policy might fit the description of a “contract.” In Barbee v. Household
Automotive Finance Corp. (2003) 113 Cal App 4th 525, the Court held that the employer did not
violate Section 96(k) by discharging a supervisor for dating a subordinate. The supervisor also
alleged the discharge violated his state constitutional privacy rights, though the supervisor had no
reasonable expectation of privacy in his relationship with his subordinate because the employer
had a policy that prohibited intimate relationships between supervisors and employees reporting
to the supervisors. Supervisors were required to notify management of any such relationship so
management could take appropriate action to avoid conflicts. The court found the policy was
reasonably related to the employer's legitimate interest in avoiding conflicts of interest and
sexual harassment claims.
1.
Off-duty Alcohol and Drug Use
A California public employer may be prohibited from terminating an employee who, for
example, posts pictures of himself intoxicated at a party (especially if the employee is over the
age of 21). However, an employer has the right to discipline an employee because he or she
drinks or uses drugs while off duty if, and only if, the off duty behavior has some effect on the
employee‟s work or on the company‟s business, such as most obviously when an employee
shows up for work under the influence of alcohol or drugs. In New York Department of
Correctional Servs, 87 LA 165 (Babiskin, 1986), an arbitrator decided that two correctional
officers were properly discharged after they were observed snorting cocaine in a night-club
parking lot while off duty. The arbitrator found there was a direct and substantial relationship
between their off-duty conduct and their fitness to perform their duties as correctional officers.
Another arbitrator in Wayne State Univ., 87 LA 953 (Lipson, 1986) found that a
university facilities manager was properly discharged after being arrested for possession of
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Off Duty Conduct – When is it Misconduct or a Conflict?
cocaine, since his position required substantial contact with the community and his success in the
position depended upon leadership and trust attributes.
2.
Moonlighting
The scope of section 96(k) is broad. By its terms, the statute appears to prohibit
employers from preventing or disciplining employees for holding second jobs. But section 98.6
allows an employer to enter into an agreement under which employees‟ outside activities are
limited if the agreement is necessary to protect the essential enterprise-related operations of the
employer and breach of the agreement will result in a material disruption of the essential
enterprise related operations of the employer. At least one Deputy Labor Commissioner has
indicated he would find a violation of section 96(k) if an employee were fired for working
another job during hours when the employee was not otherwise required to be at work for the
employer. Such an interpretation has clear implications for "moonlighting" policies many
employers include in employee handbooks. That said, a properly-drafted conflict of interest
policy likely would survive a challenge that it violates section 98.6. Typically, rules against
“moonlighting” have been held to be reasonable on the basis of either adverse impact or a
conflict of interest.
Examples of an adverse impact on the primary employer include causing excessive
absenteeism or tardiness (or both), or preventing the employee from giving his full attention and
effort to his primary job. In return for wages paid, employees are under an obligation to
regularly report for work and, to the best of their abilities, meet the physical demands place upon
them by their duties. If they are engaged in other activities which in any way make it difficult or
impossible to fulfill their responsibilities, management acts with full justification when enforcing
prohibitions against such outside conduct. An example is a case where the pressure of working
two jobs caused a bus driver not only to miss time from his primary job, but also to falsify the
reasons for his absences and accept sick leave benefits under false pretenses. Alameda-Contra
Costa Transit Dist., 76 LA 770 (Koven, 1981). However, every „moonlighting‟ case has to be
considered on its individual facts.
3.
Unlawful Conduct
In California, the law is far from clear as to whether an employer may discipline an
employee for illegal off-duty conduct. An arbitrator in Space Gateway Support, 118 LA 1633,
1637 – 38 (Abrams, 2003) ruled that two off-duty misdemeanor arrests for alleged drunk and
disorderly conduct did not constitute just cause for termination for the following reasons:
(1) The Company failed to prove in a convincing fashion the
nexus between the out-of-plant conduct and the Employer‟s
business.
(2) The Company failed to do an adequate investigation of
the facts before it acted.
Thus, a cautious employer is reminded to conduct a prompt and fair investigation and
then carefully consider the level of detriment to the organization before disciplining an
employee.
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Off Duty Conduct – When is it Misconduct or a Conflict?
Generally speaking, if off-site unlawful conduct occurs, and the conduct is not connected
with the employment and is not apt to reflect upon the employer‟s reputation or impair
operations, morale, safety, or efficiency, it is not then the proper basis for disciplinary action
against the employee. In Victorian Instrument Co., 40 LA 435, 436 (Kates, 1963), however, an
arbitrator held that “when an employee went to work in the employer‟s Assembly Department, a
coworker jumped to the conclusion that she was literally “throwing her weight around” –
bumping other employees when passing through the narrow aisles. The employee in return, felt
insulted by uncomplimentary personal remarks a coworker made about her privately and in the
presence of other employees. Finally deciding she had enough, the employee attacked her
tormenter one day during the lunch break off site. While the latter was walking toward a local
restaurant, the employee leapt upon her from behind with a fingernail cleaner in hand, scratching
her face and cutting her clothes. The ensuing struggle, in which two other employees became
involved, was finally broken up by a bartender from a nearby tavern. Both women were
discharged. This type of scenario is a classic case of off-premises misconduct that supported
disciplinary action because of its close connection to the employees‟ working lives.
4.
Will You Win The Arbitration?
Each arbitration decision is very fact specific. Since section 96(k) has such a broad
scope, it may seem as if a public employer cannot regulate or monitor any lawful off-duty
conduct of their employees. However, arbitrators Hill and Kahn have identified the following
five criteria applied by arbitrators in determining whether off-duty conduct is a legitimate
concern of the employer:
1.
the characteristics of the employer – whether the employer has high public
visibility so that adverse publicity might affect its reputation or operations – the
likelihood that the employer will suffer adverse consequences if the employee is
not disciplined – how much contact the employee has with the public – whether
success in the position is based on leadership and trust;
2.
the location of the employer – e.g. a prominent employer in a small town may
legitimately be more sensitive to a scandal based on off-duty misconduct than an
employer in a large metropolitan area;
3.
the nature of the misconduct – whether it is violent or destructive and whether, if
criminal, it is a misdemeanor or a felony;
4.
the occupation of the offender – whether there is a link between his or her duties
and responsibilities and the outside conduct (the extent to which the publicity
surrounding the conduct has connected the employee to the employer in the public
mind); and
5.
the extent and kind of publicity – whether the public‟s attention has been focused
on the misconduct – the amount of adverse publicity and the embarrassment to the
employer.
League of California Cities
City Attorneys Department 2010 Annual Conference
Page 12
Off Duty Conduct – When is it Misconduct or a Conflict?
(M. Hill, Jr. & M.L. Kahn, Discipline and Discharge for Off-Duty Misconduct:
What are the Arbitral Standards? Arbitration 1986 121-54 (Proceedings of the
39th Annual Meeting, National Academy of Arbitrators 1987).)
IV.
Social Media Considerations
Social media applications such as blogs, social networking, and video sharing have
surged in popularity over the past few years and, in one form or another, are used by employees
both inside the workplace and off-duty. According to its own statistics, Facebook, the most
popular social networking site in the U.S., has over 400 million active users who, in total, post
more than 60 million status updates each day and upload more than 3 billion photos each month.
(Facebook Press Room, http://facebook.com/press/info.php?statistics (last visited Mar. 3, 2010).
Several legal issues are implicated by attempting to regulate off-duty internet activity.
From an employee‟s perspective, an employer regulating internet activity may violate
constitutional rights (as addressed above), the Stored Communications Act, political activity
statutes, lawful activity statutes (as addressed above through analysis of Labor Code sections
96(k) and 98.6), collective bargaining statutes, and whistle blowing protections.
On the other hand, from the employer‟s perspective, regulating employees‟ off-duty
internet activity may prevent harassment and discrimination, damage to the government‟s
reputation, interference with job functions and the workplace in general, protection of
confidential information, and negligent hiring/retention. Such employer concerns are not
frivolous or unjustified. Last year an ex-convict arrested in New York City for possession of a
weapon was able to have his charges dismissed by using the arresting officer‟s MySpace and
Facebook status against him. At the criminal trial, a NYPD officer was questioned by defense
counsel as to why his Facebook status as the trial neared had him “watching „Training Day‟ to
brush up on proper police procedure.” He further had to explain why his MySpace page was set
to the mood of “devious” on the day of the arrest, and why he made certain comments on a video
he made about using excessive force on suspects. The suspect alleged the officer planted the gun
found on him and, with the help of the officer‟s online postings, was able to convince a jury the
officer could not be believed. (Gothamist, March 3, 2009, http://policelitigation
review.blogspot.com/2010/02/pitfalls-in-social-networking-sites-for.html.)
In order to prevent situations like this from occurring, many public employers want to
know whether they may discipline or terminate their employees for what they say or do on the
internet on their own time that is in some way damaging to the employer. The term “dooced” is
new vernacular that refers to being fired for putting content on a website or blog.
(www.urbandictionary.com) For example, an assistant public defender in Winnebago County,
Illinois was “dooced” after 19 years of service because of her blog postings. She wrote posts to
her blog in 2007 and 2008 that referred to one jurist as “Judge Clueless” and thinly veiled the
identities of clients and confidential details of a case, including statements like, “This stupid kid
is taking the rap for his drug-dealing dirtbag of an older brother because „he‟s no snitch.‟”
(http://www.nytimes.com/2009/09/13/us/13lawyers.html?_r=2) Recently, a North Carolina
middle school teacher was placed on leave pending an investigation into her remarks on
Facebook about her students, the South, and Christianity (referencing “ignorant Southern
rednecks”).
League of California Cities
City Attorneys Department 2010 Annual Conference
Page 13
Off Duty Conduct – When is it Misconduct or a Conflict?
In 2009, a court held that a prosecuting attorney engaged in protected speech when he
published a letter on his blog which he had written four years earlier questioning the justification
for a police shooting. Ranck v. Rundle, 29 I.E.R. Cases 576 (S.D. Fla. 2009). In 2004, the
prosecutor was sent to the scene of a police shooting, and expressed his opinion that it was not a
“clean” shoot, and the prosecutor was then removed from the investigation. He wrote a memo to
his boss objecting to his removal, and then several years later made a public records request for
the memo. He then published it on his criminal law blog and was suspended for 30 days for that
and other conduct, including commentary about his supervisors‟ veracity, failing to follow office
procedure in hiring expert witnesses, and in-court misconduct. The Court applied similar
principles as were used in Garcetti, Connick, and Pickering (as discussed above) and held that
the employee was speaking as a citizen on a matter of public concern when he published the
memo on his blog. The memo may have been originally written in the course of his duties, but it
was published later when he was in the role of a private citizen. The court dismissed the case in
favor of the employer nonetheless because the employer demonstrated that the other misconduct
was sufficient to warrant discipline.
A.
Guidelines for a Work Rule on Off-Duty Internet Activity
In order to avoid butting heads with any constitutional protections or California state
laws, public employers should use the following guidelines:
Recognize that employees have the right to participate in off-duty social
networking, other internet activity, and texting that does not involve the
employer‟s equipment and does not adversely impact their job or the employer‟s
interests
No information shall be posted or communicated in such a forum which is
discriminatory, derogatory, abusive, profane, or offensive towards another
employee, contractor, vendor, or other person with whom the employee comes in
contract in the course of their job. Employees are expected to comport
themselves professionally both on and off duty.
Any employee who expresses opinions on civic affairs in such a forum should
include a disclaimer stating that any opinions expressed are the employee‟s own
and do not represent the opinion of the entity of its officials
Failure to follow the policy will result in discipline up to and including
termination.