A Lesson from the NFL: Disciplining Employees for Off-Duty Conduct
In light of the recent news coverage of the NFL’s disturbing personnel issues, it is worth addressing whether employers in North Carolina can discipline their employees for conduct after they have clocked out for the day. In case you have not turned on your television, read a newspaper, or checked out an internet news provider in the past couple of weeks, the NFL is struggling with the fallout of their role in appropriately disciplining players for their conduct off the field. Surveillance footage from a hotel elevator was leaked that appears to show (former) Baltimore Ravens running back Ray Rice striking and knocking unconscious his then-fiancée, now wife. Rice was initially suspended for a paltry two games. Shortly after the video surfaced, Rice was released from his team and suspended indefinitely by the NFL. The hot issue for the NFL has now become whether the footage was available prior to the two-day suspension. According to some sources, it was. The question becomes, why didn’t the Ravens do more? What if they had known about prior instances of similar conduct and done nothing to discipline the player?
North Carolina is an employment-at-will state, meaning that generally employers and employees can part ways for any reason or no reason at all. Exceptions to this general rule include when there is an employment contract or there is a specific law protecting the employee (think North Carolina’s Retaliatory Employment Discrimination Act or the various Federal Laws protecting against discrimination). The NFL players are represented by the NFL Players Association, which has collectively bargained for additional protections for NFL players that you would not normally see outside of a union context. With that said, in North Carolina, outside of these exceptions, you can discipline and terminate an employee for illegal off-duty conduct. The question then becomes should you, and if so for what type of conduct? At minimum, if your employees are involved in a position that entails a safety risk to other employees and/or the public and you learn of off-duty conduct that raises serious credible concerns about that employee’s capability of performing that position safely, then you should take further investigation and precautionary action. An example of this could be learning that one of your company’s delivery drivers (who interacts with the public and your customers daily) has been convicted of an assault and battery offense, or criminal theft. You likely will have reasonably held concerns about continuing the employment relationship. If you took no disciplinary action and this employee was later involved in a physical altercation with a customer, or committed another theft while on the job, your company could face liability for those criminal acts where they would not have otherwise been responsible based on a theory of negligent hiring, retention or supervision.
Things become much more complicated when employers attempt to regulate lawful (though perhaps distasteful, immature or frustrating) off-duty conduct of their employees. Even if you have an at-will employee and the legal grounds to discipline/terminate, the best practice is to take a deep breath, step back and consider the big-picture implications. First, do you want your company to become an off-duty night watchman policing the private decision-making of your employees? If so, are you willing to police all of your employees, and not pick and choose who gets disciplined based on what type of conduct you, personally, find offensive or inappropriate? Do you have any written policies addressing “codes of conduct” or “professionalism standards” applicable to off-duty activity? (Remember, policies that go too far regulating an employee’s lawful off-duty conduct can easily violate the National Labor Relations Act and raise constitutional protections for certain public employees). Keep in mind, it may not be the best idea to discipline or terminate an employee who has engaged in lawful off-duty conduct or speech just because you disapprove of the conduct or find it distasteful. This landscape will undoubtedly become more complicated as new laws are put in place legalizing conduct (think medical marijuana).
As always, if you have a question about disciplining employees for off-duty conduct, please contact a member of our Employment Law team.