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Investigating Employee Behavior Outside of the Workplace

Can you fire an employe for their off-duty conduct? HR and corporate security expert Tim Dimoff explains what employers can do if an employee is caught behaving badly.

Posted by Timothy Dimoff on January 19th, 2021

Lately, there have been numerous incidents of protesting, marching, destruction of property and more, all done in the name of social or political issues.

What do you do if one or more of your employees has taken part in these demonstrations, in the destruction of property or in other types of misconduct? Can you investigate them? Do you punish them and, if so, to what extent? Off-duty conduct is tricky and needs to be approached with caution and with good investigative work.

 

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My Employee Did Something I Disagree With While Off Duty. Now What?

 

In the case of the recent break-in of the United States Capitol in Washington, D.C., many protesters were arrested and some were immediately terminated by their employers. Is that legal and justified? This is where having a well written off-duty conduct policy becomes very important. It needs to written so that employees don’t feel that their employer is watching their every move or has some ulterior motive to “get them.”

While it is up to the company to make decisions regarding situations with their employees under these types of circumstances, it is important to note that a thorough investigation providing positive identification of violations is absolutely necessary before any termination or other punitive measures are taken.

 

RELATED: How to Conduct an Employee Misconduct Investigation: A 12-Step Guide

 

Write an Off-Duty Conduct Policy

 

For the most part, employees are free to do what they want outside of work hours. You can’t fire an employee just because you don’t like what they do on their off-work time. However, you can institute an off-duty conduct policy that clarifies what behaviors are unacceptable to the company.

Since some off-duty misconduct can hurt the company’s reputation or ability to operate, or may impact an employee’s ability to do their job, the company is allowed to clarify what are and are not acceptable off-duty behaviors. Having a firm, well-written policy is more important now than ever before.

There are some basic behaviors that can justify investigations and even disciplinary measures including:

  • The employee’s behavior detrimentally affected the employer’s ability to conduct business.
  • The employee’s off-duty misconduct (such as being arrested or posting racist or other inflammatory or negative rants or photos) negatively impacts the employer’s reputation.
  • The employee’s behavior impacts their ability to do their job.

Make sure you have a well-written policy that allows for investigation of these types of events and clearly states disciplinary actions to be taken in the event of violations to the policy. And always consult with your legal counsel when creating an off-duty conduct policy.

 

RELATED: Policies and Procedures in the Workplace: The Ultimate Guide

 

Before You Take Action, Read Up on Local Laws

 

While investigating and instituting any punitive measures, you must respect your employees’ rights to free speech and privacy. Laws about wrongful termination, privacy and free speech vary between states. Make sure your policies are clear and comply with your state and other relevant laws. This is important in order to avoid a wrongful termination lawsuit.

The First Amendment usually protects general complaints about work, and the National Labor Relations Act of 1935 protects employees who are engaging in “concerted activity” to try to improve working conditions. This means that your policy needs to be clear about distinctions between simply griping about workplace conditions and making comments or acting in a way that is detrimental to the business.


Timothy Dimoff
Timothy Dimoff

President, SACS Consulting & Investigative Services

Timothy A. Dimoff, CPP, president of SACS Consulting & Investigative Services, Inc., is a speaker, trainer and author and a leading authority in high-risk workplace and human resource security and crime issues.
He is a Certified Protection Professional; a certified legal expert in corporate security procedures and training; a member of the Ohio and International Narcotic Associations; the Ohio and National Societies for Human Resource Managers; and the American Society for Industrial Security. He holds a B.S. in Sociology, with an emphasis in criminology, from Dennison University.

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