NFL Vikings’ Adrian Peterson as a case study: Employers as judge and jury when employees misbehave?

by Laurie Jirak

With the publicity surrounding the drawn out saga following the arrest of Vikings Pro Bowl running back Adrian Peterson, many employers may be asking what options they have to discipline or even terminate employees for allegedly engaging in unlawful conduct outside the workplace. What considerations should have an impact on your employment decisions? What guidance can the law provide, and how much discretion do you have? 

Team’s confusing response
On September 12, 2014, news broke of Peterson’s indictment in Texas on charges of reckless or negligent injury of a child after he was accused of beating his four-year-old son with a switch. What followed was a confusing and reactionary set of responses by the Vikings. After initially announcing that the running back would play and then deactivating him after his felony arrest, the team reinstated him on September 15, explaining that he “deserves to play while the legal process plays out.” But after sponsors, including Radisson Hotels, suspended support for the team and fans voiced disapproval, the Vikings reversed course again.

Ultimately, the Vikings, the NFL, Peterson, and the NFL Players Association (NFLPA) entered into an agreement under which the running back was placed on the NFL commissioner’s exempt list. That meant he was suspended with pay during the pendency of his criminal matter. That resolution appeared to satisfy most critics, but the back-and-forth by the Vikings (and the NFL) is far from the careful and reasoned response employers should strive for when addressing employees’ potentially criminal behavior.

Employer’s options when employee gets in trouble
As the Vikings case illustrates, you have several options when you’re deciding how to respond to an employee facing criminal charges. You can allow the employee to continue working pending resolution of the matter, suspend him with or without pay (or with other conditions) until the case is resolved, or terminate his employment immediately. The response you choose will depend on many factors, few of which are governed by strict law.

You will need to consult any contracts or collective bargaining agreements (CBAs) that may outline a prescribed response to the employee’s conduct. For example, CBAs often prohibit discipline for off-duty conduct unless the activity threatens workplace safety and security, the employee’s performance, or the employer’s business interests. In many situations, however, you won’t have contractual guidance, and you will need to consult legal counsel and evaluate the economic, business, and public relations impact of your response.

You may want to carefully consider the following important questions to help you identify the purpose behind any discipline:

• Is a particular response necessary to help protect workplace safety?
• How will the decision affect office morale or other employees?
• How have similar situations been addressed in the past?
• Will the company suffer by losing the employee?
• Will a particular form of discipline reduce any potential negative economic impact on the company?
• Was the conduct in opposition to a stated company value or mission statement?
• What role does the company have in the community, and how would customer or community goodwill be affected?
• Is there a link between the conduct and the employee’s job duties or the business mission?
• Does the company want to take a public stance on the alleged behavior?

While those are not all legal questions, they are very personal and relevant to the specific business and the individual employee.

The ‘do nothing’ approach
People cherish their privacy and the separation between their work and personal lives. There are times when an employer should elect to let an employee resolve his criminal matters privately, without it affecting his job. This approach is most appropriate when there is no connection between the alleged criminal conduct and the employment activity or the nature of the business. For example, a medical research company may determine that a chemist who is arrested for DWI can remain on the job without modifications because the charge isn’t likely to negatively affect the employee’s ability to do her work, the morale of other employees, or the public perception of the company.

The “do nothing” approach may also be appropriate when the criminal conduct is truly in dispute. Unlike the Peterson case, in which only the law was in dispute, many criminal charges are not as factually cut and dried. In those cases, the employer may choose to remain neutral, avoid acting as an investigator, and not take any disciplinary action until the charges are resolved. You certainly aren’t required to defer to the criminal process before taking employment action, but it’s worth considering your stance in relation to the legal concept of “innocent until proven guilty” and how public you want your response to the alleged criminal conduct to be.

Suspension or other modifications
In an effort to seek balance between the desire to “send a message” and “let justice take its course,” employers often consider some sort of suspension or modified conditions of employment. The decision will hinge largely on the nature of the alleged conduct and the public presence of the company. A case involving violence or child victims is likely to gain attention and will be more difficult to reconcile. Continuing to employ the alleged offender, even if his guilt is uncertain, poses a risk to the company’s relationship with others in the business community and the public.

Peterson’s case was a dramatic version of this. A brief review of the comments section on the Star Tribune website shows how much the Vikings’ reputation was put in jeopardy when the team reinstated him. However, many people understood that his particular offense was reportedly charged with cultural differences. Therefore, suspension with pay was an acceptable middle ground for most.

The financial impact on a company may not always come in the form of lost contracts or sponsorships. Paying for an indefinite suspension or keeping the employee’s job open for an extended period of time may be too much for an employer to handle. Criminal cases can take months or even years to resolve, depending on their complexity. Suspending an employee, with or without pay, for the duration of the case is an undefined resolution and may leave your company and the employee in limbo for quite some time.

Another modification that you may consider is requiring counseling to address the underlying conduct. This approach has been suggested repeatedly in Peterson’s case. It sends the message that the organization takes the conduct seriously but is still willing to support its employees.

Termination
Drastic times call for drastic measures, but perhaps not as often as we think. Termination for alleged criminal conduct sends a clear message to the employee, all other current employees, and the public: Your business has a zero-tolerance policy. It’s appropriate in situations where the conduct is clear-cut or particularly egregious. For example, when tight end Aaron Hernandez was arrested and jailed for first-degree murder in 2013, the New England Patriots’ decision to cut him was likely easy.

However, few decisions are that obvious. An organization loses nothing by taking a bold stance against homicide. But what about more nuanced cases? The consensus seems to be that Peterson’s case is indeed nuanced. One of the most difficult components in the matter was the reported cultural influence on his behavior and on the public’s reaction. In certain areas of the country, a “switch” has been used to discipline children for generations. But behavior that is the norm in one region may be untenable elsewhere.

When a criminal case involves charged issues, the employer may lose significant favor with the public for outright condemnation and termination of the employee. It’s worth considering the long-term impact of a reactionary termination. If the employee is your top salesperson, leading researcher, or star player, termination may cripple both profits and company morale. Other employees may become wary of the work environment or doubt the support of leadership. A competitor may snatch up the now free agent. Or, depending on the alleged crime, goodwill may be damaged if the business is seen as inflexible, unforgiving, and unwilling to value the due process afforded by the justice system.

The Peterson case was resolved much faster than most observers predicted. On November 4, he closed the criminal component of the case with a no-contest plea to a misdemeanor charge of reckless assault and an agreement to pay a $4,000 fine, complete 80 hours of community service, and attend counseling. On November 18, NFL Commissioner Roger Goodell suspended Peterson without pay for the remainder of the 2014 season under the personal conduct policy. Peterson cannot be considered for reinstatement before April 15, 2015. Peterson appealed the NFL’s suspension, but an arbitrator has upheld the suspension. The Vikings, of course, will need to determine whether they will retain or cut Peterson prior to his reinstatement.

Regardless of the additional suspension or whether the Vikings cut him, Peterson will likely play again. Some fan support may be lost forever, but his skill and determination, combined with his public remorse over the incident, will likely sustain him. Not all careers can survive these types of disciplinary actions, however.

A negative employment record can follow someone for the remainder of his career. Because an employee doesn’t have a right to a trial at work—or sometimes even a right to be heard at all—it’s on the employer to take disciplinary action in response to criminal charges seriously and deliberate that action carefully. People make mistakes. Odds are, a situation involving off-duty misconduct by an employee will arise more than once for any employer.

Bottom line
It’s important to evaluate any disciplinary action through the lens of the long-term goals of your business. Not only will your decision affect the individual employee, but it will likely have an impact on office morale, your company’s public image, and your bottom line. A careful, considered resolution is preferred to a reactionary or pressured one because each new decision sets a template for the next one and permanently influences the culture of your company.

Moreover, you must make sure you discipline employees consistently to avoid discrimination claims. Accordingly, it’s imperative to take the time to thoroughly analyze an employee’s allegedly unlawful conduct and the potential discipline you should impose (if any) before making a decision.

Laurie Jirak is an attorney with Felhaber, Larson, Fenlon and Vogt, P.A., practicing in the firm’s Minneapolis, Minnesota, office. She may be contacted at ljirak@felhaber.com.