OFFDUTY MISCONDUCT IN THE PUBLIC SECTOR By Denise

OFF-DUTY MISCONDUCT IN THE PUBLIC SECTOR By Denise L. Wheeler Ford Harrison dwheeler@fordharrison. com 239 -314 -2288 www. fordharrison. com July 25, 2016

WHAT IS OFF-DUTY MISCONDUCT? • Is it off duty misconduct that may be regulated or is it none of your business? • The trick in this area is to identify what is off-duty misconduct and what is protected activity. • There is often not a clear cut answer. 2

WHAT IS OFF-DUTY MISCONDUCT? Disney World Student Employee Fired After Tweeting a Break Room Sign Addressing On-Site Alligators 3

WHAT IS OFF-DUTY MISCONDUCT? 4

WHAT IS OFF-DUTY MISCONDUCT? 5

WHAT IS OFF-DUTY MISCONDUCT? 6

WHAT IS OFF-DUTY MISCONDUCT? Goldman Sacks Employee Over Purchase of Trump Hats 7

THE NEW TOWN CRIER New methods to disseminate information quickly: • Blogs • Texting • Twitter • Social networking sites • Digital cameras • Youtube • Iphones and cell phones 8

“From the standpoint of young people, there’s no real distinction between online life and offline life, its just life. ” John Palfrey, Harvard University law professor Co-director of the Berkman Center for Internet and Society 9

WHAT GOVERNS OFF-DUTY MISCONDUCT? Employment Contracts may regulate off-duty conduct. For example, in the case of the University of Arkansas who fired its football coach for not disclosing an “inappropriate relationship” with a female employee, his employment contact gave the university the right to suspend or fire the coach for conduct that “negatively or adversely affects the reputation of the (university’s) athletics programs in any way. ” 10

WHAT GOVERNS OFF-DUTY MISCONDUCT? Employment Contracts may regulate off-duty conduct. For example, the employment agreement may state that “a violation of a criminal law”, or “a conviction of a felony involving honesty, death, morals or drugs” is grounds for dismissal. ” As a practical mater, public employer’s employment contacts tend to be limited to city managers, administrators and high level department heads. 11

WHAT GOVERNS OFF-DUTY MISCONDUCT? • Union contracts may also provide the grounds for regulating employee’s off duty conduct. • The typical language of a public employment contract prohibits discipline unless “just cause” for such discipline exists. • Collective bargaining agreements may also expand on the “just cause” requirement by setting forth specific examples of misconduct – including off duty misconduct. • More often such regulation is contained in the employer’s policies. 12

ARE THERE LIMITATIONS ON CONDUCT THAT MAY BE REGULATED? • The common use of a “just cause” standard allows considerable leeway in interpretation by an outside arbitrator. 13

LIMITATIONS ON CONDUCT THAT MAY BE REGULATED (cont’d. ) In viewing off duty misconduct cases, arbitrators tend to use the following factors to determine “just cause”: 1. Did the employer give the employee forewarning or foreknowledge of the possible or probable disciplinary conduct? (In the alternative, is this a rule, regulation or standard that any employee should know? ) 2. Was the employer’s rule or managerial order reasonably related to: a) The orderly, efficient, and safe operation of the employer’s business; and b) The performance that the employer might properly expect of the employee? 14

LIMITATIONS ON CONDUCT THAT MAY BE REGULATED (cont’d. ) 3. Did the employer, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management? 4. Was the employer’s investigation conducted fairly and objectively? 5. At the investigation, did the final decision make obtain substantial evidence or proof that the employee was guilty as charged? 15

LIMITATIONS ON CONDUCT THAT MAY BE REGULATED (cont’d. ) 6. Has the employer applied its rules, orders, and penalties evenhandeldly and without discrimination to all employees? 7. Was the degree of discipline administered by the employer in a particular case reasonably related to: a) The seriousness of the employee’s proven offense; b) The record of the employee in his service with employer? 16

LIMITATIONS ON CONDUCT THAT MAY BE REGULATED (cont’d. ) • In the context of off duty conduct, the focus is on factor 1: • Whethere was a rule in place and factor 2: • Was the rule reasonably related to: a) The orderly, efficient, and safe operation of the employer’s business; and b) The performance that the employer might properly expect of the employee 17

LIMITATIONS ON CONDUCT THAT MAY BE REGULATED (cont’d. ) • In off duty cases, typically the first thing an arbitrator will look for is whether the employer can demonstrate the connection between the conduct and the potential or actual “damage to [the] company’s… reputation and problems of interrelationship with the other employees at work. ” 18

The National Academy of Arbitrator’s Test The National Academy of Arbitrator’s four prong test requires an employer to establish one of the following: a) The misconduct involves harm or threats to supervisors, co-workers, customers, or others with an actual or potential business relationship with the employer; b) The misconduct could seriously damage an employer’s public image; c) The misconduct reasonably makes it difficult or impossible for coworkers, customers, or others with an actual or potential business relationship with the employer to deal with the employee; or d) The employee makes off-duty public attacks on the employer, supervisors , or the employer’s product. 19

Arbitration Rulings Examples of where discipline for off-duty conduct was upheld: Ø Termination for placing a private part in a fellow employee’s hand during an off-duty birthday celebration at the local bowling alley. Ø Termination for lying about the off-duty conduct noted above. Ø Termination for off-duty DUI when employee required to have a commercial driver’s licence. Ø Termination reduced to 30 hour suspension for domestic violence. Ø Termination upheld for conviction of possession of controlled substance and failure to advise employer of prior conviction. Ø Termination upheld for corrections officer convicted of five charges involved in breaking into ex-girlfriends apartment and failure to notify employer. 20

Arbitration Rulings Cont’d Examples of where discipline for off-duty conduct was upheld: Ø Termination of officer for off-duty use of cocaine. Ø Termination of plumber for DUI and open bottle resulting in the employer’s insurance prohibiting employee from driving employer vehicle. Ø Termination of child mental health worker arrested for domestic assault later DUI arrest. 21

Can a Public Employer Discipline Employees for Internet Postings? Examples of where discipline for off-duty conduct was upheld: • The First Amendment protects citizens, including public employees, from state or government action. Any action by a public employer triggers the protections afforded under the Constitution. • Depending on the content, a public employee’s posts have greater protections than those of a private employee. 22

Ceballos v. Garcetti (2006) 547 U. S. 410 In Ceballos, the Supreme Court stated that when a “public employee speaks pursuant to employment responsibilities, ” a heightened scrutiny standard under the First Amendment is inappropriate. 23

Impact of Ceballos “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. ” 24

Ceballos’ Considerations • Where do you draw the line between a private person and their official functions? • Can you be disciplined for blogging or posting your vacation photos on your own computer? • Are bloggers journalists? • Do the posts become part of the public record? 25

When are employees just griping, and when is their conduct protected speech? 26

UNFAIR LABOR PRACTICE • Interfere with, restrain, or coerce employees in the exercise of their Section 7 rights to engage in protected concerted activities; • Interfere with and dominate a labor organization; • Discriminate against an employee because the employee engaged in union activities or refrained from engaging in union activities; • Discriminate against an employee because the employee filed charges or gave testimony under the National Labor Relations Act; • Refuse to bargain in good faith with a union that is the exclusive representative of its employees. 27

“PROTECTED AND CONCERTED ACTIVITY” • Two or more employees addressing their desire to improve their pay, safety concerns, etc. with each other; or • An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions. 28

“You are going to serve. . . …Hotdogs!” • Employee at BMW dealership took mocking photos of coworkers during an event and posted them, along with comments, on Facebook. • Also took picture of a BMW crashed into a pond. • Lawfully terminated. 29

THE DISGRUNTLED BARTENDER • Employee and fellow bartender had conversation about how a tip-sharing policy “sucked. ” • Employee posted on Facebook: “Hadn’t had a raise in five years”; “Doing waitresses’ work without tips”; “Customers are ‘rednecks, ’ I hope they choke on glass as they drive home drunk. ’” • Lawfully terminated. 30

THE “TAXING” EMPLOYEES • Employees discovered they owed state income taxes because their income tax had not been properly withheld and brought it to the employer’s attention. • Former employee posted a “short-hand expletive” on Facebook complaining about issue. Another employee “liked” it. Another employee call owner “such an a**hole. ” • Employer threatened to sue employees for their comments. • Employees unlawfully terminated. 31

THE CYBER-BULLIES • One co-worker posted complaints about another co-worker on Facebook. • Four other co-workers joined in and complained about the same co-worker. • Employees unlawfully terminated. 32

Hispanics United of Buffalo Inc. & Carlos Ortiz, Case No. 03 -CA-02787. • Employee, L. Cruz-Moore, told co-worker, M. Cole-Rivera, that she planned to tell management that employees were not doing enough to help victims of domestic violence who used the nonprofit's services. • Cole-Rivera posted on her Facebook page: “Lydia Cruz, a coworker feels that we don’t help our clients enough at [Hispanics United]. I about had it! My fellow coworkers how do u feel? ” • Four off-duty co-workers responded, objecting to the assertion that their work performance was substandard. • Cruz-Moore complained to management about the Facebook exchange. • Cole-Rivera and the other four employees were terminated for bullying and harassment. • Terminations were unlawful. 33

Take Away: Meyers Industries Framework Continues to Apply • An employee’s discipline or discharge is unlawful if it is motivated by an employee’s concerted, NLRA-protected activity and if the employer knows the activity was concerted. 34

Social Networking – Misconduct Example: Harassment concerns “I’ve been working with these two girls every day for four years and every day I want to have crazy sex with at least one of them. I want them to [expletive deleted] me and [expletive deleted]. … How do I keep my urges in check? ” Posted by “Adamhum” 35

Remember - Harassment • Federal and state laws require employers to take action to prevent or eliminate harassment. • An employer can be liable for an employee’s behavior if it has actual or constructive knowledge. 36

City of Ontario v. Jeff Quon Question presented to Supreme Court: Does a police officer have a reasonable expectation of privacy in text messages transmitted on his city-issued pager, and whether third parties sending text messages to the police officer’s pager have a similar expectation of privacy in the messages sent? 37

Impact of City of Ontario • Court’s comments regarding employer policies shaping privacy expectations demonstrate the importance of establishing and regularly disseminating broad policies that place employees on notice that communications may be accessed by the employer. • In the event an employer is required to review employee communications, those investigations should be initiated based upon a legitimate business reason and be appropriately limited in scope. 38

Social Media Policy Considerations 39

Savings Clause Not Enough • A statement that, “[The] Social Media Policy will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act), ” is not sufficient. • Use examples. 40

Other Unlawful Limitations • You should never share confidential information with another team member unless they have a need to know the information to do their job. ” • All posts must be “completely accurate, not misleading and not reveal non-public information. ” • “Contact legal if you do not know if something should be posted. ” • “Do not reveal personal information about other employees. ” 41

Quicken Loans Inc. , No. 28 -CA-075857 • Confidentiality Provision: Employees may not disclose to any person, business or entity nonpublic information relating to the company's business or personnel, including all personnel lists, personal information of coworkers, and personnel information such as home phone numbers, cell phone numbers, addresses and email addresses. • Non-disparagement Provision: The non-disparagement rule, meanwhile, barred employees from publicly criticizing, ridiculing, disparaging or defaming Quicken Loans or its products, services and policies through any written or oral statement. • Both overbroad. 42

Questions? Denise L. Wheeler dwheeler@fordharrison. com 239 -314 -2288 43

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