[Special article written by Louis P. DiLorenzo, Esq.]
Before you can answer this question, a number of factors need to be considered. The single most important consideration should be whether the conduct impacts or could impact the employer's interests. Does it affect the good will of the business, or does it indicate the employee is not fit to work for the organization?
Most labor arbitrators, for example, impose a requirement that there be some nexus between the off duty conduct and the job. If the conduct is criminal, some states may have an ex-offender law which prohibits a refusal to terminate the employee, due to a prior conviction, unless there is a nexus. Also, it may be illegal to fire someone due to an arrest, that has not resulted in a conviction.
It is not illegal, however, to conduct an investigation as to whether someone has engaged in conduct that indicates their continued employment is not appropriate, even if there is an arrest pending. For that reason, employers should conduct their own investigation into the off-duty conduct and make the employment decision irrespective of the criminal arrest or outcome of the criminal proceeding. It is usually a mistake to suspend someone pending the outcome of the criminal proceeding.
There is also a Labor Law statute which protects employees engaged in lawful off-duty conduct which does not materially conflict with the employer's interests. Activities such as union acitivity, recreational activity, lawful use of consumable products and political and free speech activities are examples.
At the same time, off-duty conduct ignored by an employer could expose the employer to liability to third parties for foreseeable danger and risk to third parties served by the employer. For example, a customer service representative convicted of assault off-duty, may expose an employer to "negligent retention" when/if the employee assaults a customer during a work related argument.
Given all these competing considerations, care should be taken when an employer learns of an employee's off duty misconduct.
[Mr. DiLorenzo is a senior partner at Bond, Schoeneck & King, PLLC, and Co-Chair of it Labor and Employment Law Department.]
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