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3 Times You Can Fire An Employee For Off Duty Conduct

By Laura Strachan, Esq. | Last updated on

Juan Williams -- the veteran NPR reporter was recently fired for making comments about his fear of flying when there is a Muslim on the aircraft. Helen Thomas -- a White House reporter for over five decades was fired for making anti-sematic comments in an interview. Howard Arenstein-- a longtime reporter for the CBS was fired after police discovered Arenstein and his wife were growing marijuana plants in their Washington D.C. backyard.

What do all these people have in common? Well, in addition to being highly-respected in their various fields, they were all fired for statements for behavior that they engaged in OUTSIDE of their employment. Williams and Thomas were both interviewed not in their official capacities as reporters, but in personal interviews with a different media outlet. Arenstein was not growing marijuana at the CBS office, but in his own backyard. All the firings beg the question, when can an employer fire an employee for actions taken off the clock? Here are three ways ...

  1. Breaking a company's code of ethics -- Code of ethics or professional responsibility policies are popular (and very general) clauses in many employment contracts which basically demand that an employee behave in the best interests of a company, at all times. There are the obvious issues with this provision (i.e. free speech, anyone?) but in the end, entering into an employment contract is a decision, not a demand, and people are free to contract as he or she pleases. One important suggestion for an employer that wants to have this option: you actually have to have a policy on this.

  2. Breaking the law -- Arenstein is a perfect example of this. He did not break the laws and rules of CBS, he broke the laws and rules of the criminal justice system. Criminal behavior is often a valid reason for firing an employee. Again, this is a policy that can, and should, be put in writing.

  3. Making the Business Look Bad -- this reason is general for a reason. Because it depends what state you are in, and what behavior your are looking to fire an employee for. Many states have limitations on when an employer can fire an employee for off duty conduct. For instance, some employers have fired employees for smoking or using tobacco products after work hours, and have run into some legal problems down the line. In the end, a showing of just cause is usually required to fire an employee for off-duty activities. In order to show this, an employer should be able to articulate how the off-duty conduct implicates an employers negative business interests.

More than other employment decisions, firing an employee for his or her off-duty conduct is a truly individual analysis. Including provisions in an employment contract is one way to put the employee on alert, and help to shield an employer from potential liability down the road. And a word to the wise -- setting a good example as an employer is always a good idea too.

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