John Strahan, a sergeant for the Washoe County, Nev., Sheriff’s Department, was a member of a motorcycle club called Blind Justice. He allegedly attended motorcycle events, wore Hell’s Angels T-shirts and hung out with other bikers, including some who were convicted felons. When Strahan was demoted to deputy sheriff, he filed a lawsuit contending he was disciplined because of his involvement with Blind Justice—in violation of his First Amendment right of free association. We’ll provide tips for avoiding similar disputes.
Officer Investigated, Then Demoted
After several employees complained about Strahan’s outside activities, the department investigated his conduct. The probe revealed that Strahan had introduced other officers to a biker who was a convicted felon.
Join us this fall in San Francisco for the California Employment Law Update conference, a 3-day event that will teach you everything you need to know about new laws and regulations, and your compliance obligations, for the year ahead—it’s one-stop shopping at its best.
Strahan received a disciplinary notice that listed various department rules violations, including that Strahan operated his motorcycle without a license, filed false articles of incorporation for Blind Justice and didn’t submit a required written report about his association with several felons. Department rules prohibited officers from knowingly associating with convicted felons, except when performing official duties. An officer who had contact with a felon had to submit a written report to his supervisor specifying whether he intended to continue the association.
Because of the investigation, Sheriff Richard Kirkland demoted and reassigned Strahan. The stated reasons were violations unrelated to the motorcycle club, including Strahan’s alleged arrogance, insubordination and inability to remember detail, a necessary skill for a police officer testifying in court.
Employee Claims Freedom To Associate Violated
Strahan sued. He claimed he was investigated, disciplined and demoted because of his ties with bikers, in violation of his right to free association. A federal court found that his involvement with Blind Justice was protected expression. But the court nevertheless dismissed the lawsuit on the grounds that Strahan didn’t show that his protected expression was a substantial or motivating factor in his discipline. Strahan appealed.
No Showing That Association Motivated Demotion
The Ninth Circuit Court of Appeal, which covers California, affirmed the dismissal. The court explained that even though Sheriff Kirkland knew of Strahan’s association with Blind Justice, that fact alone wasn’t sufficient to demonstrate that his affiliation motivated the discipline. The court pointed out that Kirkland knew about Strahan’s Blind Justice involvement long before he imposed discipline and didn’t express opposition to it. What’s more, Kirkland took care to ensure that the investigation focused on Strahan’s contacts with convicted felons and failure to report them rather than on his Blind Justice activities.
Practical Advice
Although the employer prevailed, this case illustrates the kinds of issues that can arise when you take adverse action based on an employee’s non-work activities and associations. Note that the federal constitutional prohibition on interference with protected associations only applies to public employers. But a California law prohibits all employers from demoting, disciplining or terminating an employee or applicant for lawful conduct occurring during off-duty hours away from the employer’s premises. And another state law bars you from interfering with an employee’s political activities.
Despite these laws, you can discipline or terminate a worker whose personal actions interfere with their job performance. Make sure work-related problems are well documented and the person is made aware of them. Focus on those issues, rather than the after-hours activity, when taking disciplinary action. And steer clear of mentioning off-the-job activities in connection with a termination decision. Even a hint of a link between the termination and after-hours conduct could set you up for an expensive legal battle.