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How To Handle Off-Duty Employee Misconduct

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The charges leveled against Atlanta Falcons quarterback Michael Vick are atrocious. There's no doubt about that. As a human being, you may be ready to throw the book at him (and worse). But if you're a Human Resources manager faced with an employee who is accused of engaging in criminal or otherwise unsavory off-duty activities, your reaction must be less emotional.

First, keep in mind that an arrest is not a conviction. In other words, Vick has not been proven guilty, although many are already vilifying him. While the workplace is not a court of law and does not require the same standard of proof for establishing guilt, and you probably have employment at-will on your side, the fact that minorities are statistically more likely to be arrested requires employers to be careful about holding an arrest against an individual.

At the pre-hire stage, employers may not ask about arrest records due to the potential disparate impact on minorities. Delving into convictions is more allowable. However, you shouldn't have a blanket policy refusing to hire those who have been convicted. One must consider the nature of the crime, the tie to the job, when it occurred, and the like.

If a current employee is arrested, don't jump the gun on punishment — regardless of race. Vick was barred from attending training camp. According to an AP report, the Falcons also wanted to suspend him for four games, the maximum penalty a team can assess. It did not, though, at the request of the NFL Commissioner, who asked the team to withhold punishment until the league investigates the matter.

Second, any actions you do take must be consistent with company policies and past practices. An employee who has been arrested may wind up missing a lot of work. You could theoretically fire the individual for attendance policy violations. However, if you gave another employee who got into trouble with the law for a similar deed an unpaid leave of absence to sort out the situation, it could be discriminatory to hold the absences against the other.

What about an employee's non-criminal off-duty activities? They fall into an even grayer area. Before taking action, you should consider whether:

  • the activity occurred on company premises;
  • the employee used company equipment or other property;
  • the activity created a material conflict of interest;
  • the activity negatively impacted worker morale or productivity; and
  • the activity harmed the company's reputation or image.

The more of these factors that apply, the better you will be able to defend your employment decision.

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