OFF-DUTY MISCONDUCT IN THE PUBLIC
SECTOR
By Scott Lepak
Barna, Guzy & Steffen, Ltd.
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(763) 783-5129
www.bgs.com
WHAT IS OFF-DUTY MISCONDUCT?
• Is it off duty misconduct that may be
regulated or is it none of your business?
– The trick in this area is to identify what is off-duty
misconduct and what is protected activity.
• There often is not a clear cut answer.
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WHAT IS OFF-DUTY MISCONDUCT?
•
Nine years ago, U.C. Berkeley Professor of Law, Stephen Sugarman, wrote an
interesting article detailing examples of where employers, both public and
private, suspended or terminated employees for behavior that took place off
the work site:
The University of Alabama fired its new football
coach after it was reported that he partied with
strippers when he was in Florida for a golf tournament.
The San Francisco Chronicle dismissed a technology
reporter after he was arrested while protesting the war in
Iraq on his free time.
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WHAT IS OFF-DUTY MISCONDUCT?
A Lockheed employee claimed he was punished by his
employer because of jokes he told at a private retirement
party honoring a fellow worker.
The Chicago Tribune forced the resignation of nationally-known
columnist Bob Green after it was disclosed that he had a sexual
relationship with a young woman he had earlier featured in a
column.
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Off duty misconduct –
do you know it when you see it?
The dean of students at a Catholic high school was forced to
resign after his name and photo were found on sexually
suggestive websites related to homosexuality, motorcycles,
and leather.
Turner Broadcasting System adopted a policy of hiring only
non-smokers.
Commercial airlines suspended pilots who smoked marijuana
on their days off.
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Wal-Mart fired two sales associates who violated
the firm’s ban on dating between employees who
work in the same store.
Coors Brewing offered economic incentives to its
workers who pledged to wear seat belts whenever
they drive.
The Air Force brought court martial proceedings
against officers who committed adultery.
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Professional sports leagues have disciplined
players and owners for gambling and for
associating with gamblers.
The Marines (briefly) announced that they only
wanted recruits who were single.
Stephen D. Sugarman, “Lifestyle” Discrimination in Employment, 24 BERKELEY J. EMP. & LAB. L. 377,
378 (2003)(citations omitted).
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• Not much has changed in those nine years.
 The University of Arkansas fired its football coach for not disclosing an
“inappropriate relationship” with a female employee as national polls hotly
debated which mistress was most attractive.
 Jerry Sandusky was convicted of sexual assaults while associated with the
Penn State football team.
 In 2012, the Putnam County Sheriff’s Department instituted the following
policy:
• “Employees of the Putnam County Sheriff’s Department are not allowed to date or marry one
another. In the event employees wish to date one another, one of the parties must abandon
his/her employment with the Putnam County Sheriff’s Department.
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What governs off-duty conduct ?
Employment contracts may regulate
off-duty conduct.
•
•
-
For example, in the case of the fired Arkansas football coach,
his employment contract gave the university the right to
suspend or fire the coach for conduct that "negatively or
adversely affects the reputation of the (university's)
athletics programs in any way.“
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What governs off-duty conduct ?
Employment contracts may regulate
off-duty conduct.
For example, the employment agreement may
state that “a violation of a criminal law,” or
“a conviction of a felony involving honesty, death,
morals or drugs” is grounds for dismissal.
As a practical matter, employment contracts in Minnesota cities tend to be
limited to city managers, administrators and high level department heads.
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What governs off-duty conduct?
• Union contracts may also provide the grounds for regulating
employee’s off duty conduct.
– The typical language of a public employment contract prohibits
discipline unless “just cause” for such discipline exists.
– Collective bargaining agreements may also expand on the “just cause”
requirement by setting forth specific examples of misconduct –
including off duty misconduct.
• More often such regulation is contained in a City’s policies.
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Are there limitations on conduct
that may be regulated?
• The common use of a “just cause” standard (or the
similar “misconduct” standard in veterans preference
cases) allows considerable leeway in interpretation by
an outside arbitrator.
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Limitations on conduct that may be regulated,
(cont’d.)
In viewing off duty misconduct cases, arbitrators tend to use the following
factors to determine “just cause”:
1. Did the employer give the employee forewarning or foreknowledge of
the possible or probable disciplinary conduct? (In the alternative, is this
a rule, regulation or standard that any employee should know?)
2. Was the employer’s rule or managerial order reasonably related to:
a) the orderly, efficient, and safe operation of the employer’s business;
and b) the performance that the employer might properly expect of the
employee?
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Limitations on conduct that may be regulated,
(cont’d.)
3.
Did the employer, before administering discipline to an employee, make
an effort to discover whether the employee did in fact violate or disobey
a rule or order of management?
4.
Was the employer’s investigation conducted fairly and objectively?
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Limitations on conduct that may be regulated,
(cont’d.)
5.
At the investigation, did the final decision maker obtain substantial
evidence or proof that the employee was guilty as charged?
6.
Has the employer applied its rules, orders, and penalties evenhandedly
and without discrimination to all employees?
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Limitations on conduct that may be regulated,
(cont’d.)
7.
Was the degree of discipline administered by the employer in a
particular case reasonably related to: a) the seriousness of the
employee’s proven offense; and b) the record of the employee in his
service with the employer?
Arbitrator Carroll R. Daugherty in Enterprise Wire Co. (located at 46 LA 360)
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Limitations on conduct that may be regulated,
(cont’d.)
• In the context of off duty conduct, the focus is on factor 1:
- whether there was a rule in place;
and factor 2 :
- was the rule reasonably related to: a) the orderly, efficient, and safe
operation of the employer’s business; and b) the performance that the
employer might properly expect of the employee.
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Limitations on conduct that may be regulated,
(cont’d.)
• In off duty cases, typically the first thing an arbitrator will look for is
whether the employer can demonstrate the connection between the
conduct and the potential or actual “damage to [the] company’s . . .
reputation and problems of interrelationship with the other employees at
work.”
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The National Academy of Arbitrator’s test
The National Academy of Arbitrator’s four
employer to establish one of the following:
prong test requires an
a. The misconduct involves harm or threats to supervisors, co-workers, customers,
or others with an actual or potential business relationship with the employer;
b. The misconduct could seriously
damage an employer’s public image;
Christine Ver Ploeg, Terminating Public School Teachers for Cause Under Minnesota Law, 31 WM. MITCHELL L.
REV. 303, 358-59 (2004)(citing THE COMMON LAW OF THE WORKPLACE: THE VIEW OF ARBITRATORS § 6.6 at 168
(Theodore J. St. Antoine ed., 1998))
The National Academy of Arbitrator’s test
The National Academy of Arbitrator’s four prong test requires an
employer to establish one of the following:
c. The misconduct reasonably makes it difficult or impossible for co-workers,
customers, or others with an actual or potential business relationship with the employer to
deal with the employee; or
d. The employee makes off-duty
employer’s product.
public attacks on the employer, supervisors, or the
Christine Ver Ploeg, Terminating Public School Teachers for Cause Under Minnesota Law, 31 WM. MITCHELL L.
REV. 303, 358-59 (2004)(citing THE COMMON LAW OF THE WORKPLACE: THE VIEW OF ARBITRATORS § 6.6 at 168
(Theodore J. St. Antoine ed., 1998))
An alternate four prong test
Another useful test largely covers the same area but is
worded differently:
1. THE BEHAVIOR HARMS THE EMPLOYER’S REPUTATION OR
PRODUCT.
• This is a highly subjective test. To the extent the conduct is
reported in the press, and the grievant is identified as an
employee of the company, the case for discipline or discharge is
strengthened, particularly if a serious crime is involved. Kearney,
Arbitral Practice and Purpose in Employee Off Duty Misconduct
Cases 69 NOTRE DAME L. REV. at 138 (FURTHER CITATIONS OMITTED)
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Alternate four prong test, cont’d.
2. THE BEHAVIOR RENDERS AN EMPLOYEE UNABLE TO
PERFORM HIS OR HER DUTIES OR APPEAR AT WORK.
• If the conduct is closely related to the grievant’s responsibilities, a
nexus exists. Kearney, Arbitral Practice and Purpose in Employee
Off Duty Misconduct Cases 69 NOTRE DAME L. REV. at 139 (noting
that dismissal of a security guard is appropriate for off-duty theft);
see also In re. Weyerhauser Co., 86 Lab. Arb. Rep. (BNA) 182
(1985)(Levin, Arb.)(stating “[t]he “off duty” conduct must affect
the work performance.”)).
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Alternate four prong test, cont’d.
3. THE BEHAVIOR LEADS TO REFUSAL, RELUCTANCE, OR
INABILITY OF OTHER EMPLOYEES TO WORK WITH HIM OR HER.
• An employer may document objections of co-workers to persuade the
arbitrator to discharge the employee. Kearney, Arbitral Practice and Purpose in
Employee Off Duty Misconduct Cases 69 NOTRE DAME L. REV. at n. 25 (quoting United
States Postal Serv. v. National Ass’n of Letter Carriers, 89 Lab. Arb. Rep. (BNA) 495, 500
(1987)(citing Bonet v. United States Postal Serv., 712 F.2d 213 (5th Cir. 1983)(“the
employer submitted affidavits from five subordinates of the plaintiff stating that they
could no longer work effectively for him. A majority of the court found this substantial
evidence of the required nexus.”)).
• If the grievant’s reinstatement poses a threat to the safety of other workers,
discharge will likely be supported. Kearney, Arbitral Practice and Purpose in
Employee Off Duty Misconduct Cases 69 NOTRE DAME L. REV. at 141 (citing
Commonwealth of Pennsylvania, 65 Lab. Arb. Rep. (BNA) 280 (1975)(Stonehouse,
Arb.)(finding termination of a liquor store employee acceptable where termination was
based on the employee’s off-duty beating to death of an elderly woman).
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Alternate four prong test, cont’d.
4. THE OFF-DUTY CONDUCT UNDERMINES THE ABILITY OF THE
EMPLOYER TO DIRECT THE WORK FORCE.
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Limitations on regulating off-duty conduct
First Amendment protections:
– Balancing employee rights to freedom of expression on matters of public
concern with employer’s interests in promoting efficiency of public services.
Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
– Balance is in favor of Constitutional protection EXCEPT when employer “shows
that some restriction is necessary to prevent the disruption of official
functions or to insure effective performance of the employee.” Childers v.
Indep. Sch. Dist. No. 1, Bryan Cnty, 676 F.2d 1338, 1341 (10th Cir. 1982).
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Limitations on regulating off-duty conduct
First Amendment protections:
– Balancing requires examination of content, context, time, manner and place of
employee’s expressions. Connick v. Meyers, 461 U.S. 138, 146-153 (1983).
– Conduct that rises to the level of employee misconduct may be just cause for
termination, but never for termination of right to free speech. City of
Wooster, Ohio, 111 Lab. Arb. Rep. 1167 (BNA) (1999) (Richard, Arb.)
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Limitations on regulating off-duty conduct
Social Media and the National Labor Law:
– While Minnesota cities are not specifically subject to the National
Labor Relations Act (NLRA) or its interpretations, state courts have
utilized the NLRA to interpret similar provisions in the state law
applicable to public employers (MPELRA – located at Minn. Stat.
Sec.179A).
– This means that Minnesota cities should be aware of the likelihood
that the federally recognized protections related to social media may
apply to Minnesota cities.
– Section 7 of the NLRA: right to “engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection. 29 U.S.C. § 157 (2000).
Limitations on regulating off-duty conduct
Social media limitations (cont’d.):
– Concerted Activity:
• Action by individuals engaged with authority of other employees
OR
• Action by a single employee trying to enlist support of fellow
employees by initiating or inducing action
• Does not include individual gripes
• Acts that are outrageously disgraceful may loose protection
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Limitations on regulating off-duty conduct
Social media limitations (cont’d.):
– Mutual Aid and Protection:
• Posts must be about mandatory subjects of bargaining
• Posts may need to be about creating change
– General Counsel 2-step inquiry:
(1) Rule clearly unlawful if it explicitly restricts Section 7 protected activity;
(2) If it does not specifically restrict, there is only a violation of Section 8(a)(1)
if (a) employees would reasonably construe the language to prohibit
Section 7 activity;
(b) the rule was promulgated in response to union activity; or
(c) the rule has been applied to restrict the exercise of Section 7 rights.
NLRB Office of the Gen. Counsel Rep., Memo. OM 12-31, at 3 (Jan. 24, 2012).
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Limitations on regulating off-duty conduct
Minnesota has an interesting law stating that the Minnesota
public sector labor law does not prohibit a collective
bargaining agreement from including provisions related to
workplace communications. Minn. Stat. Sec. 181.985.
 Workplace communications are any printed or electronic document,
letter, brochure, flyer, advertisement, e-mail, text message or similar
means pertaining to union business or organizing as provided under
state law.
 While drafted as a protection for employees and unions, this law
appears to allow cities to regulate such conduct through negotiating
restrictions and prohibitions into collective bargaining agreements.
Limitations on regulating off-duty conduct
• Criminal activity is not actionable when:
•
•
•
•
•
No valid conviction – record of arrest is not enough
Conviction has been annulled or expunged
Conviction is a misdemeanor for which no jail time can be imposed
Minn. Stat. § 364.04
This same law, Minn. Stat. § 364 deals with employment and
convictions
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Limitations on regulating off-duty conduct
• Relationships between employees
• Employer regulation may lead to Human Rights claims
• No need to specifically allege a direct attack on institution of
marriage for marital status discrimination cases. See, Taylor v. LSI
Corp. of Am., 796 N.W.2d 153 (Minn. 2011).
• The Minnesota statutory prohibition on regulating lawful non-work
activity (Minn. Stat. Sec. 181.938) does not apply to Minnesota cities.
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Arbitration Rulings
The Bureau of Mediation Services has interpreted the MN
Government Data Practices Act as prohibiting publication of
awards in which no discipline is issued.
•
Examples of where discipline for off-duty conduct was upheld:
 Termination for placing a private part in a fellow employee’s hand during offduty birthday celebration at the local bowling alley.
LELS and Steele County, BMS Case No. 07-PA-0220 (Befort, 2008).
 Termination for lying about the off-duty conduct noted above.
LELS and Steele County, BMS Case No. 09-PA-0748 (McGilligan, 2009).
 Termination for off-duty DUI when employee required to have a commercial
driver’s license. LELS and the City of Champlin, BMS Case No. 10-PA-0029 (Befort, 2010). However, in
a similar case involving the City of Coon Rapids, termination was not upheld
(unpublished due to BMS’ policy on not publishing awards that overturn
discipline).
 Termination reduced to 30 hour suspension for domestic violence. Minneapolis
Police Federation and City of Minneapolis, No BMS No. (Reynolds, May 18, 2012).
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Arbitration Rulings Cont’d
 Veterans Preference termination upheld for conviction of possession of
controlled substance and failure to advise employer of prior conviction. Lanerd v.
State Dept. of Corrections, BMS No. 12-VP-0358 (Befort, 2012).
 Veterans Preference termination upheld for a corrections officer convicted of
five charges involved in breaking into ex-girlfriend’s apartment and failure to
notify employer. Legland v. State Dept. of Corrections, BMS No. 11-VP-1279 (Daly Panel Chair, 2011).
 Termination of officer for off-duty use of cocaine.
LELS and Stearns County, BMS No. 11-PA-
0452 (Befort, 2011).
 Termination of plumber for DUI and open bottle resulting in the employer’s
insurer prohibiting veteran from driving employer vehicle. Maire and ISD No. 191, No
BMS No., (Berg O’Toole Panel Chair, 2011).
 Termination of child mental health worker arrested for domestic assault and
later DUI arrest. Teamsters Local 320 and Rice County, BMS No. 10-PA-1561 (Befort, 2011).
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Thank You!
Questions?
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RESOURCES
CONTACT LMC’s HUMAN RESOURCES DEPARTMENT
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Laura Kushner: (651) 281-1203, [email protected]
Joyce Hottinger: (651) 281-1216, [email protected]
For a recording of this webinar, go to: www.lmc.org/offdutyconduct