Many employers have rules that prohibit off-duty conduct that may reflect negatively on the company. But even with such policies, it’s tricky to discipline employees for the things they do on their own time away from the workplace.
In fact, you’re free to use discretion in deciding whether an employee should be warned, suspended or terminated (unless you have a strict no-tolerance rule). The key is to make sure you can explain why you treated one employee differently than another.
Here’s how to do so: Get the specifics down in your records so you can later explain your reasoning. You’ll find it seldom turns out that two employees did exactly the same thing, or that they held the same job.
And those differences will make a difference later if one of the employees sues, alleging disparate treatment. With good records, you’ll be able to show that the people your litigious employee is comparing herself with aren’t similarly situated at all.
Recent case: Virginia Galaviz worked as a crime beat reporter and on-air personality for KSAT, the ABC-affiliated TV station in San Antonio.
Her employment contract had a “morals” clause that called for termination if she didn’t conduct herself appropriately.
The clause provided that “if employee commits any acts or becomes involved in any situation or occurrence tending to degrade employer in the community or which brings employee into public disrepute, contempt or scandal …” that employee could be terminated.
Galaviz had a series of stormy relationships. First, she got into an argument with the man she was dating, a San Antonio city council member. According to a police report, that incident began with dinner and ended when the man allegedly punched Galaviz in the face and pointed a gun at her. That generated extensive press coverage since Galaviz was a well-known personality, but KSAT didn’t discipline her.
She then began a new relationship, which ended when her boyfriend came home with another woman and the three of them argued. Police were called and Galaviz was allowed to leave.
That time, her boss warned her that any further public altercations could mean termination.
Her bad luck with men continued when Galaviz started dating boyfriend No. 3. The two had a fight in a bar, and when Galaviz later discovered she had a black eye, she tracked down the boyfriend. They fought and the police arrested both, taking them to jail. This, too, got lots of press coverage, complete with photos of Galaviz being led in handcuffs to the magistrate’s office. This time, she was fired.
Galaviz sued, alleging sex discrimination and claiming others at the station had kept their jobs after being arrested.
But the station showed that the others either weren’t on-air personalities or that their arrests hadn’t received widespread notoriety. Plus, none repeatedly got involved in public incidents. The court dismissed Galaviz’s case. (Galaviz v. Post-Newsweek Stations, No. SA-08-CA-305, WD TX, 2009)
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