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HR Magazine: Off Duty, Out of Work

By Carolyn Hirschman  2/1/2003

HR Magazine, February 2003Vol. 48, No. 2

Employers have the right to fire employees for most off-duty behavior.  But should they?

By all accounts, Peter Oiler was a competent truck driver with a 20-year record of exemplary service at Winn-Dixie Stores Inc. He showed up on time, performed his duties well and caused no problems while on the job. But it was his off-the-job behavior—cross dressing—that ultimately got him fired in January 2000. The 47-year-old resident of Avondale, La., likes to wear women’s clothing, accessories, makeup, wigs and fake breasts. He usually adopts the persona of “Donna” at home but sometimes goes out with his wife and friends to restaurants, the shopping mall and church. Upon learning of his non-mainstream activities, Winn-Dixie terminated Oiler. The company’s managers said their customers might shop elsewhere if they recognized “Donna” in public as a company employee, court records show. “His activity could harm the company image,” Oiler’s supervisor said, according to the complaint Oiler filed in federal court. But Oiler says he had no contact with shoppers, and he sued Winn-Dixie for sex discrimination, alleging the company fired him because he did not conform to the gender stereotype of a man.

“Everyone agrees he was not terminated for anything related to his job performance,” says Ken Choe, an American Civil Liberties Union (ACLU) attorney based in New York who represented Oiler. “All of the cross-dressing behavior occurred off the job,” and Oiler never violated Winn-Dixie’s dress code, Choe adds.

Mickey Clerc, vice president of public relations for Winn-Dixie, a Jacksonville, Fla.-based company that operates supermarkets in 14 states, would not comment on the case.

The company prevailed in September, when a federal judge in New Orleans ruled that federal and state laws prohibiting sex discrimination do not apply to “transgendered” people—those whose gender identity does not consistently match their biological sex.

While Winn-Dixie won in a court of law, the company may have lost ground in the court of public and employee opinion. The case generated a lot of media coverage; it also generated sympathy among Oiler’s closest co-workers.

“Quite a few people told me, ‘You’re not hurting anybody. You do your job extremely well. How can they do this?’” says Oiler, who decided not to appeal and now drives trucks for a Texas-based pet-supply company.

“The common theme [among former co-workers] was, ‘If they can get away with this, what can they do to me?’” he says. “It’s got a lot of people saying, ‘Where’s the limit?’”

Oiler’s case shows some of the difficulties companies may face when dealing with termination for off-duty conduct. Lawsuits from ex-employees, negative publicity, low morale and related turnover are among the potential results when employees are fired for off-the-job behavior.

Yet, on the other hand, employers also shouldn’t keep employees whose after-work activities affect their performance on the job, hurt staff morale or damage the company’s image.

So what’s an HR professional to do?

In such situations, HR must walk a fine line—one that varies with the facts in each specific case. Writing universal policies that govern all “questionable” off-duty behaviors is impractical and could be perceived as Big Brother-ish by employees.

“If you try to have a black-and-white policy, you’ll be second-guessing it and harming good people,” says Mary C. Cheddie, SPHR, vice president of HR at Orvis Co. in Manchester, Vt., and a member of the SHRM Board of Directors. “It’s not a textbook science. It’s a case-by-case situation where you have to access as many facts as you can.”

Ultimately, when deciding whether to terminate employees for off-duty behavior, HR professionals will need to ask, and answer, two important questions:

  • Are there any special legal factors at issue in this case?
  • What effect, if any, does the off-duty behavior have on the employee’s job performance, the workplace or the company’s image?

The more off-duty behavior negatively affects workplace performance or the business as a whole, the more valid termination becomes as an option—provided no special legal protection exists.

Gray Matter

In most cases, termination for off-duty behavior appears legally safe. After all, private employers generally have the right to fire employees for almost any reason.

Under the “at-will” doctrine of employment, “you can be fired for any reason or no reason, as long as it’s not illegal,” says Peter Petesch, an attorney in the Washington, D.C., office of Atlanta-based law firm Ford & Harrison LLP.

What’s illegal? That’s the catch. A number of federal and state laws restrict the at-will employment doctrine and, in some cases, employees may successfully argue that these statutes protect their off-duty behavior. (Oiler failed in this attempt because the court ruled that transgendered employees are not a protected class.)

In fact, more than half of all states bar termination for various types of off-duty conduct. New York, for example, prohibits adverse actions based on employees’ political activities, “legal use of consumable products” and “legal recreational activities” off hours and off employer premises. (For information on state laws protecting off-duty behavior, see “Protected Behaviors at the State Level”)

In addition, federal anti-discrimination laws prohibit all but the smallest employers from terminating employees based on race, color, national origin, religion, sex, pregnancy, age and disability. Federal law also prohibits employers from firing workers for engaging in legally protected activities such as union organizing, whistleblowing, filing a workers’ compensation claim and reporting potential safety violations.

Other factors that may limit employers’ ability to terminate employees are written employment contracts and employee handbooks, either of which may specify that employees will be terminated only for cause.

In addition, most collective bargaining agreements allow union employees to be terminated only for “just cause,” and most cases must pass through a multi-step grievance procedure that includes arbitration. Rick Bank, director of the AFL-CIO’s Center for Collective Bargaining in Washington, D.C., says most union contracts don’t allow termination for off-duty behavior unless it directly affects job performance.

So, while employers can fire employees for no reason, it’s not always advisable. Employees can argue that your real reason was discriminatory and violated one of the multitude of state or federal laws. Camille A. Olson, SPHR, chair of the labor and employment practice of Seyfarth Shaw in Chicago and a member of the SHRM Employee and Labor Relations Committee, says terminations “should always be tied to a legitimate business purpose.”

The Drinker

Some types of after-hours behavior may significantly affect an employee’s on-the-job performance yet also may be protected by law, to some extent. Again, determining legal factors and the relation of the behavior to the job are important.

HR must consider various factors before terminating an employee for off-the-job drinking. Those factors include the nature of the job (is it safety-related?), when the abuse takes place (a couple of hours before a shift?) and treatment (has the person been diagnosed as an alcoholic?).

Legally, employers can fire an employee whose off-hours drinking impacts job performance, even in the 10 states that protect off-duty use of alcohol. Frequent absenteeism, drunkenness at work and an arrest for driving under the influence on company time are clear grounds for dismissal. HR is disciplining inadequate job performance, regardless of its cause.

Safety-related positions have strict rules for off-duty use of alcohol because of the danger drinking could pose to customers and to the general public. Commercial airline pilots, for example, cannot consume alcohol eight hours or less before flying a plane and are not allowed in the cockpit with a blood alcohol level of 0.04 percent or higher, says John Mazor, a spokesman for the Herndon, Va.-based Air Line Pilots Association, the pilots’ union. These federal rules are enforced through random tests.

Regulated or not, all companies should have a written alcohol and drug-use policy. But HR must be careful in dealing with current and recovering addicts and alcoholics, who are protected under the Americans with Disabilities Act (ADA). HR can start by using progressive discipline—verbal and written warnings with a documented performance improvement plan—to give alcoholic employees any number of chances to improve on the job.

In the end, you have the right to pull the plug if things don’t improve. “No employer has to lower its performance standards just because the employee has a disability,” says attorney Sue K. Willman of Spencer, Fane, Britt & Browne LLP in Kansas City, Mo., a member of SHRM’s Employee and Labor Relations Committee.

Gloria A. Brooks, PHR, an HR business partner at Mitre Corp. in McLean, Va., and a member of the SHRM Employment Committee, says she once fired “a really good performer” at a former employer but only after restructuring her duties and allowing her to come in late. “We tried to work with her. It didn’t work for very long,” Brooks notes.

As a first step, HR professionals advise talking to employees about job problems and offering help, such as through an employee assistance program (EAP) or health-insured counseling. But don’t mention the word “alcoholic”; only medical experts can diagnose alcoholism and doing so could open you up to ADA issues.

If company policy allows, HR can require an alcohol test or make treatment a condition of continued employment. Last-chance agreements, in which employees get one more chance to shape up or ship out, are another option, though some HR experts believe they’re ineffective. Employee consent is needed to obtain information from alcohol-treatment programs.

If an employee admits he is an alcoholic or is in or about to enter treatment, the ADA requires you to make a “reasonable accommodation” that does not impose “undue hardship” on the business. In the case of alcoholics, that usually means offering enough paid or unpaid leave, depending on company policy, to complete a rehabilitation program, attend outpatient counseling or go to Alcoholics Anonymous meetings. Restructured jobs, temporary reassignments and modified work schedules are other possibilities.

Arrests and Convictions

Another off-duty situation that HR must deal with involves arrests and convictions. Here, HR should first consider the nature of the crime and how it affects the workplace. An accountant arrested for embezzling church donations may be treated more harshly than an accountant arrested for domestic abuse, for instance.

In the first case, the accountant’s crime, like his or her job, is financial in nature and is more clearly grounds for termination. In the second case, the crime is unrelated to the job, so the accountant might get the benefit of the doubt. Termination is legal in either case.

“The penalty should fit the crime,” says Peter P. Fornal, an HR consultant in East Greenwich, R.I., and a member of SHRM’s Employee and Labor Relations Committee. Many employers suspend arrested workers or reassign them to jobs away from customers and the public pending the outcome of their criminal cases. Some employers take the “innocent until proven guilty” tack and just keep a watchful eye on the worker.

Of course, you can terminate an employee who is in jail and doesn’t show up for work. Rachel A. Prine, SPHR, HR manager at SCTelcom in Wichita, Kan., says while working for a previous employer, she once went to a county jail to fire a file clerk who didn’t come to work for three days. “She was terminated for no call, no show,” says Prine, of the SHRM Employment Committee.

Be careful with terminations based solely on arrests, attorneys say. Black men are arrested more than whites, so you could wind up with a disparate-impact case under Title VII of the Civil Rights Act, though such reviews are rare, says Peggy Mastroianni, associate legal counsel at the Equal Employment Opportunity Commission in Washington, D.C.

That doesn’t mean it’s never OK to fire an employee who has been arrested, but not yet convicted. If you have a “reasonable belief” that the worker engaged in off-duty, job-related misconduct, you’re probably on safe ground, Mastroianni adds.

“The courts will back up your decision as long as you did a prompt, thorough and fair internal investigation,” says Ann Kiernan, an attorney at employment-law training firm Fair Measures Corp. in New Brunswick, N.J.

Case in point: Cheddie once fired an apartment-building maintenance worker arrested for child molestation because there was enough evidence—pictures and videos in his apartment—to justify possible danger to young residents. In contrast, she suspended without pay another maintenance worker arrested for spousal abuse while awaiting the outcome of his case. He was later convicted and fired.

In the event of a conviction, most employers will terminate, HR professionals say. A shoplifting retail clerk is an easy call. Even seemingly unrelated crimes are job-related if they involve dishonesty or violence, Mastroianni says.

But termination isn’t always the answer for non-job-related convictions, says Prine. Employees arrested for domestic abuse might be best referred to an EAP, but “if they started to become violent in the workplace, it becomes a job-related behavior.”

The Toughest Cases

Some of the most difficult situations for HR involve legal off-duty, non-job-related conduct that is deemed objectionable. The political extremist. The guy who makes dirty movies at home. The married woman having an affair.

Four states—California, Colorado, New York and North Dakota—prohibit firing workers based on lawful outside activities, and some jurisdictions specifically protect political activities. However, in most places and in most cases, it’s legal to fire someone for this sort of off-the-job behavior. But is it the right thing to do?

Again, it depends. “You can conclude this is not the kind of employee you want working for the company,” Fornal says.

However, many employment experts believe it’s morally wrong to fire people because you don’t agree with their behavior or don’t like what they do in their spare time. “It’s a misuse of corporate power,” says Lewis Maltby, president of the National Workrights Institute in Princeton, N.J. “There are countless unpopular groups in this country, and it’s just not right” to prevent members of these groups from holding jobs.

What’s more, a company may think it’s within its rights to fire someone for behavior that contradicts its value system, but, in fact, the person may be part of a protected class.

Take the case of Kimberly Turic. The Holiday Inn in Holland, Mich., fired her in October 1992 from her job as a room-service attendant after she confided to her boss that she might have an abortion. She was an 18-year-old single mother at the time.

“I went to my boss and told her, ‘I don’t know what my plan is, whether I am going to have the baby.’ I thought I could trust her,” says Turic, now 29 and working as a cook at a drug rehab center. But word leaked out, and soon staff in the hotel’s restaurant were in an “uproar,” according to the ACLU’s friend-of-the-court brief filed on Turic’s behalf. Two weeks later she was fired, officially for failing to fill coffee urns in the hotel lobby, as her job required.

“It hurt because I was a good employee. I was on the way up,” says Turic, who worked at the Holiday Inn for 14 months. “I was so angry I called a lawyer.” Her case became one of the first to test the Pregnancy Discrimination Act of 1978 as it applies to abortion.

A federal district court in Kalamazoo, Mich., and an appeals court in Cincinnati both ruled that the Holiday Inn discriminated against Turic by discharging her for considering an abortion. She was ultimately awarded $64,000 in back pay and compensatory damages in 1996. Turic decided to have the baby, a girl now 9.

Holiday Inn officials would not comment on the case.

What HR Can Do

While it’s hard to write procedures covering every conceivable case, policies that dissociate off-duty activities and work are one way to prevent problems. Rules barring conflicts of interest and use of company equipment for outside activities are common. You also can instruct employees not to mention their employer or wear clothing with a company logo during off-duty activities in public.

Richard G. Baggett, SPHR, an HR consultant in San Angelo, Texas, suggests the following language for employee handbooks: “Ordinarily we do not intervene in the private lives of our employees. However, should a conflict with a client or an activity on an employee’s part be of a nature that it could tarnish the image of our company or hurt our business position in the community, management reserves the right to enforce proper disciplinary actions.”

Termination is justified when off-duty conduct is antithetical to an employer’s mission, products, services or public image, HR experts say. “Any organization is harmed by having someone whose values are completely incompatible with [its own],” Maltby says.

The best strategy, experts say, is to have clear policies on off-duty conduct and disciplinary procedures that are followed consistently and to scrupulously document violations and performance problems that could lead to termination.

Not only does this help prevent lawsuits, it can smooth the feathers of employees left behind. A consistent process for termination “reinforces to [employees] that the company is fair, even if they don’t agree with the decision,” says Barbara L. Allen, SPHR, vice president of HR at Amwest Surety Insurance Co. in Calabasas, Calif., and a member of SHRM’s Employment Committee.

It’s not always easy to decide what to do in matters involving off-duty conduct. There are no automatic right or wrong answers. HR’s best tools are knowledge of the law, fair policies that are consistently followed, careful documentation and, above all, good judgment.

Carolyn Hirschman is a business writer based in Rockville, Md. She has written for a variety of business publications and has covered workplace issues since 1991. 

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