Can you be fired / terminated for off-duty conduct?

An issue often arises in connection with the off-duty conduct of employees of whether an employee can be disciplined or even discharged by his employer based on such off-duty conduct. This answer to this question will often depend on the facts surrounding the employee’s conduct. Where the conduct is offensive and egregious, however, the courts will often rule in the employer’s favor.

In a recent New York case, for example, a male nurse employed in a hospital visited the hospital while on vacation. The employee, who was intoxicated, got into a violent scuffle with security guards at the hospital and was terminated. The employee brought action for wrongful termination arguing that his off-duty conduct should not have been considered by the jury. The court disagree, however, holding that his off-duty conduct was relevant to the issue of whether he posed a threat to the safety of others.

Employers should avoid taking adverse action against the lawful off-duty conduct of employees unless:

* The conduct represents a conflict or potential conflict of interest (e.g., working for a competitor or engaging in self-employment in competition with one’s employer).
* The conduct impairs an individual’s job performance (e.g., drop in an employee’s productivity because a second job makes the employee too tired to work at expected performance levels).
* The conduct puts the employee in a position where his judgment or authority can be compromised (e.g., a manager dating a subordinate and having authority for employment decision affecting that individual.) It is important to note, however, that the adverse employment action against the manager should be based on job-related factors and not his off-duty conduct. Such job-related factors may include a loss in confidence in the manager’s ability to manage the subordinate; on-the-job conduct, such as spending excessive time with the subordinate with no business justification; or making decisions that negatively affect other employees and could be in violation of the company’s sexual harassment policy (e.g., showing favoritism with respect to a promotion).

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