Articles Posted in Off-Duty Conduct

During the 2007-2008 school year, Ms. Kimble was employed as a cook and cheerleading coach at a high school.  In December 2007, she took the cheerleaders on an overnight Christmas party held in a cabin located outside the county.  The trip was not approved as was required by district policy.  When administration learned about the trip, Ms. Kimble was instructed that all future out-of-county trips must have prior approval.

The following year, Ms. Kimble worked as a cook at an elementary school and as the cheerleading coach at the same high school at which she had coached the prior year.  In December 2008, Ms. Kimble took the cheerleaders to the same cabin for another overnight Christmas party.  Ms. Kimble and a parent went as “chaperones” but Ms. Kimble did not seek or obtain approval for the trip.

During the party, Ms. Kimble was photographed in the hot tub, surrounded by several female cheerleaders.  Although Ms. Kimble was clothed, most of the girls were topless.  All of the girls were minors. 

Delaware Chief Medical Examiner Richard T. Callery has made news headlines for his off-duty conduct.  According to The News Journal, Callery is the subject of a criminal investigation relating to his testimony as an expert witness in cases outside of Delaware. 

In short, the claim is that Callery spent a lot of time serving as a paid witness in cases in other States, while neglecting his own duties.  And, to add insult to injury, Callery apparently testified on behalf of the defense in several cases, which, some argue, diminishes his credibility when called to testify in Delaware on behalf of the State.

The lesson to be learned for employers is an important one.  Many employers put limitations on moonlighting by employees.  Such limits may be included in an employment contract or in a personnel handbook. 

Is discrimination ever legal? Most definitely. We all discriminate all day, every day. For example, nearly every morning, I discriminate against decaf coffee in favor the full-strength brew. The two pods are similarly situated right there in the rack. They brew in the same amount of time and cost the same. But I just can’t bear the thought of the decaf.

Is my coffee choice discriminatory? You bet. Is it unlawful? Good heaven, let’s hope not.

The same is true for the workplace. Employers can make employment decisions (i.e., discriminate), based on all sorts of things. Like who is the faster typist. Or who has the least number of dress-code violations. Choosing not to promote the employee who spends most mornings checking his Facebook account is discriminatory and it’s totally lawful.

Some people are real jerks. Anyone who deals with the general public for a living knows that this is an indisputable fact. For those who work in sales or service positions know that the theory “the customer is always right” can be a bitter pill to swallow. Every waiter, store clerk, and receptionist has had a moment where they had to swallow very hard to resist firing back at an irate and/or irrational customer who’s decided to take out his or her frustrations on whoever happens to be in their line of vision. Most of the time, it is not possible or not wise to fight back.

But, sometimes, it is.

Take, for example, Jennifer Livingston, a TV news anchor in LaCrosse, Wisconsin. A viewer with, apparently, way too much time on his hands, took it upon himself to write Ms. Livingston a note to express his displeasure with her weight. “Obesity is one of the worst choices a person can make and one of the most dangerous habits to maintain,” wrote the viewer. “I leave you this note hoping that you’ll reconsider your responsibility as a local public personality to present and promote a healthy lifestyle.”

“More job-seekers are facing an added requirement: no smoking — at work or anytime.” That is the opening line of an article on USA Today’s Money website. I will defer to the news organization and the author of the piece but, to be frank, I have doubts about the objective veracity of that statement. I am certain, however, that this story is not a new one.

In October of last year, for example, we noted that Texas’ Baylor Health Care System had elected to implement a ban hiring smokers. This does support the USA Today’s claim that health-care employers are leading the way in this trend. We also wrote about this trend nearly a year ago in February of 2011 in a post, called Health-Care Employers Who Don’t Hire Smokers, in which we discussed a similar article in the New York Times.

The underlying question in these and similar articles is whether it is a good idea for employers to discriminate against individuals who use tobacco. Without coming out and saying so, both articles seem to conclude that the answer to this question is “yes.” As you can read in my previous posts, I tend to be less convinced. Primarily, my concerns are as follows:

Can employers refuse to hire a applicants for their tobacco use? In most states, the answer is “yes.” Unless the candidate is applying for a job in a State with a “smokers’-rights statute,” an employer can refuse to hire candidates who smoke.

According to the Texas Employment Law Update, that’s exactly what one of North Texas’ largest employers has announced it will do. Baylor Health Care Systems announced that it will not hire or consider for hire any candidate who uses any nicotine product. This is additional evidence of a continuing trend in health care.

See also

A new opinion from the Delaware Superior Court sheds light on when off-duty conduct justifies an employee’s termination for purposes of denying unemployment benefits. Because Delaware is an at-will state, it is well established that an employer may terminate an employee for off-duty conduct. However, an employer must have “just cause” for termination in order to avoid payment of unemployment benefits. The Superior Court’s opinion clarifies that an employee’s off-duty conduct must have a non-speculative impact on the employer’s business in order to constitute “just cause” for termination.

A Hairy Situation

The case of Michael Christopher Designs v. Willey (PDF) revolves around the termination of a receptionist at the Michael Christopher Salon (the “Salon”). The Court’s recitation of facts indicates that the receptionist, Nicole Willey, engaged in a “heated and profane” argument with one of her co-workers, Dottie. The argument occurred during non-work hours, via text message, and stemmed from an incident where the Salon management had confronted the women about alleged sharing of prescription medication with another employee. The two employees then exchanged a string of profane and aggressive comments going in both directions, but Willey’s text messages included threatening language, such as “Hope u aint at work 2mor. Ur gonna b sorry.”

Not all workplace discrimination is unlawful.  For example, employers can refuse to hire candidates who will not wear necessary safety equipment. That is discrimination.  That is not unlawful discrimination.  One type of employment discrimination that is not unlawful in some states is discrimination against smokers or, more usually, discrimination based on tobacco use.  cigarette pack broken cigarette

We’ve written about the efforts of many employers to reduce health-care costs and increase productivity by not hiring applicants who smoke or use tobacco. (See, Health vs. Privacy: Employers Continue to Juggle Both; How Far Should Employers Go When It Comes to Employees’ Health?; Not Everyone Is Fired Up About Smoking Ban; Employer Quits Its Smoking-Penalty Policy).  Last week, the N.Y. Times ran an article about the increase in this type of “discrimination” in the health-care field.  Of all employers, it makes the most sense that an employer in health-care would not hire employees who elect an unhealthy lifestyle. 

I have mixed feelings about these bans for a number of reasons.  For example, lots of non-smokers live very unhealthy lifestyles by failing to exercise or not working to reduce high cholesterol.  But smoking is, by far, a trendier target than high cholesterol.  On the other hand, smoking is also more deadly.  So if you are an employer who wants to promote health, it would make sense to target the one activity that has the farthest reaching negative impact.  (Of course, there was a study that showed that having an inconsiderate and uncommunicative boss was more likely to suffer a heart attack than an employee who smokes or who fails to exercise.  See “My Boss Is Killing Me”).

mens outfit

By now, we should all be well aware that our out-of-office conduct can result in discipline  or termination in the workplace. Never has this been more true than today, when people document their entire lives online, leaving cyber-footprints everywhere they go. Sadly, this was a lesson learned too late by Congressman Christopher Lee.

Lee was a two-term Congressman from New York, with a wife and young child. Apparently Mr. Lee got a little frisky in Washington, and emailed a picture of himself, shirtless, to a woman on Craigslist. The woman then shared the photo with, a celebrity news site. Mr. Lee has since resigned his seat by letter to House Speaker John Boehner.

This news story is just another reminder, if anyone needed it, that internet conduct is not private. Even if you restrict access on blogs, Facebook, or similar sites to “friends,” the information you share is not private. This is a message that has clearly not penetrated our corporate culture. So, the onus remains on employers to remind their employees that out-of-office conduct can result in employee discipline, and that their conduct online is highly visible and relevant to workplace performance!

Employees’ rights to free speech seems to become a hot topic right around election time.  During a very rare interview with Larry King last night, Supreme Court Justice Breyer discussed the importance of free speech. Larry, being the inquisitive interviewer that he is, asked Justice Breyer about Reverend Terry Jones’s highly controversial decision to burn copies of the Koran on the anniversary of 9/11.

3d man with megaphone
The Justice compared Jones’s plans to the burning of the American flag, a practice that the Justice was repulsed by during the Vietnam War era. Jones was eventually dissuaded from following through on his plan, thanks in part to calls from Secretary of Defense Robert Gates. However, the Justice noted that Jones was well within his First Amendment rights to carry through with his controversial plan, reminding us all that freedom of speech applies equally to popular and unpopular speech.

While private employers are not subject to the restrictions of the First Amendment, this is certainly an issue for public employers to take to heart. Jones’s actions and the upcoming elections may well spark political speech within the office. Such speech is generally protected, unless it falls within one of a very few prohibited categories, including profanity and fighting words.

Contact Information