With the advent of the Internet and the almost instantaneous dissemination of recordings, postings and pictures, behavior which may have been overlooked or was unknown by an employer ten years ago is now leading to the termination of employees for out of work behavior. Most recently, a young woman from Iowa who worked at a bank was fired after a video went viral of her jumping into a fountain at a baseball game. The basis of her firing, according to her employer, was that she violated a policy that barred behavior that reflects badly on the bank. This behavior, although a basis for termination, was not a basis for denying her unemployment.
According to the administrative law judge, while this behavior was questionable, it did not rise to the level of substantial, job-related misconduct sufficient to warrant a denial of unemployment benefits. As an employer, if you become aware of what you would deem “inappropriate behavior” outside of the workplace by an employee, prior to terminating that employee, you should consider the following:
1. Do you have a well-defined policy that would prohibit the behavior?
2. Do you have a contract with the employee that would clearly prohibit the behavior?
If you don’t have either of these, you should tread carefully when determining that discipline or termination is an appropriate response to the out of work behavior. If you do have a policy or a contract, you should still make sure that the policy doesn’t adversely impact people in a protected class. The more discretion you build into the policy, the more an employee may feel like he or she is being unfairly singled out. Union issues, EEO questions and retaliation concerns may play into your decision. If the decision is made to terminate the employee, be aware that the employee may still be entitled to unemployment benefits, which are determined under different criteria.
Perhaps you could fire someone for being dumb enough to jump in a fountain in December!
