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Do you have a Weiner in your workplace? Disciplining employees for off-duty misconduct

by Lauren E.M. Russell

The most fortuitously named figure in modern politics is embroiled in yet another scandal: Former Congressman Anthony Weiner is back in the news because of a third round of sexting allegations. He has been suspended or terminated from two freelance writing positions because of the recent allegations against him. While a politician’s repeated fall from grace is a great excuse for a bit of schadenfreude, it also provides a teachable moment. Employers are frequently concerned about making employment decisions based on an employee’s out-of-office conduct, but Weiner’s case reminds us that what happens online is a perfectly valid reason for taking disciplinary action

Keeping your Weiner private
As a general rule, an employee’s conduct outside the workplace is fair game. As long as the employee keeps his philandering or other misconduct private, there is little reason to impose workplace discipline. But as soon as misconduct, including workplace indiscretions and indiscrete social media posts, becomes a public issue, discipline is something you need to think about.

That is especially true when the misconduct reflects poorly on the employer by association. Weiner is not an employee; he’s a freelance writer (an independent contractor). But the same rules apply. He was caught in a very public act of misconduct, and it doesn’t look good for the publications with which he is associated—the New York Daily News and The Daily Beast.

What about your business? If an employee is engaging in misconduct and it comes to your attention, you can make a judgment call and act on the information available to you. The closer the relationship between work and the misconduct, the more motivation there is to act. For example, employers are frequently made aware that an employee has been arrested and charged with a crime when the employee is a no-call/no-show for work. Under those circumstances, we often suggest that the employer terminate the employee under its attendance policy. An employee who has been charged with criminal misconduct is likely in for a long period of spotty attendance while he addresses the charges in court, even if the misconduct is not worrisome in and of itself. Consequently, unless you have a strong reason to keep the employee on the payroll, unexcused absences are a valid basis to terminate his employment. You have no reason to wait for the employee to be tried and convicted of a crime before taking action.

Another situation in which it is important to act is when an employee engages in misconduct that can expose your business to liability. If you learn that one of your employees is making racist, sexist, or other bigoted rants online, take swift action. If the offending employee is later accused of workplace discrimination, his online conduct may well be used against your business in litigation.

When it comes to all other misconduct, you must make a judgment call. If the behavior is likely to disrupt the workplace—now or in the future—consider taking disciplinary action. If the misconduct is unlikely to cause disruptions, you are well within your discretion to look the other way. The only rule of thumb is to verify your sources. You should never take action based on workplace gossip like “I heard that Sam sexually harassed a teenage girl at his last job!” Unless you can verify the allegations through someone with actual knowledge, acting on them is often unfair, even if it is lawful.

Your Weiner and social media
If evidence of misconduct comes from the social media sphere, make sure that you comply with the social media statutes in all states where you operate. For instance, in Delaware where I focus my practice, the social media statute is located in Title 19, Section 709A of the Delaware Code. The statute prohibits an employer from forcing an employee to (1) disclose his social media username or password; (2) access personal social media accounts in the employer’s presence; or (3) otherwise divulge personal social media information except as expressly permitted by the statute.

So what social media information can you force an employee to divulge under Delaware law? Not much, but you are free to access any information stored on your company’s network or devices and information that is publicly available. Thus, if an employee approaches HR with screen shots of another employee’s social media account, you may rely on that information, and you may attempt to access the information directly if the wrongdoer’s social media account is public. Just don’t call your Weiner into your office and demand that he access his Facebook account while you watch over his shoulder.

Be sure to check the applicable social media laws in states where you operate to ensure that you are in compliance.

Need to know what your state’s laws say about your right to an employees’ personal online accounts or personal electronic communications devices? 50 Employment Laws in 50 States lists employer obligations by state for this issue and many others. For more information, go to http://store.hrhero.com/products/50-employment-laws-in-50-states. HR Laws subscribers have access to this information in both the original text form and as part of a chart builder tool that allows you to select only the states and laws that interest you and create a chart that allows for quick, side-by-side comparisons.

The Government Weiner
The rules are a bit different for public employers because public employees have a right to freedom of expression under the First Amendment to the U.S. Constitution. That right is curtailed when it affects the workplace, but it still exists. So if an employee is engaging in workplace harassment through Facebook, Twitter, or another platform—say, by sending suggestive pictures to another employee who has no desire to see them—you can take action. But policing out-of-work speech, particularly speech that may have political or religious overtones, is risky. When dealing with public employees, the safest course of action is to always seek legal counsel.

The Unionized Weiner
Unionized workplaces are also subject to more scrutiny. As we all know, the National Labor Relations Board (NLRB) has been cracking down on any activity that it believes might inhibit an employee from engaging in protected activity. Online posts that complain about the workplace or managers and result in disciplinary action will be given serious scrutiny if brought to the NLRB’s attention. Keep in mind that even if your workplace is not unionized, the Board may exercise jurisdiction over social media policies and other rules that could inhibit employee speech inside or outside the workplace. Nonunionized workplaces are less likely to draw scrutiny. The key is to maintain closely circumscribed policies that focus on discriminatory, harassing, or otherwise illegal speech in the public sphere. Policies that generally prohibit employees from speaking negatively about your business are much more likely to result in trouble.

Bottom line
Regulating an employee’s extracurricular behavior may be tricky, but it is often necessary. While most employers are free to discipline employees for behavior outside the workplace, it is best to limit scrutiny to behavior that is public and reflects poorly on your business. If you become aware of inappropriate, unprofessional, illegal, or otherwise undesirable conduct by an employee outside of work, check the facts and decide what action is appropriate to protect your business’s goodwill. And when in doubt, give your attorney a call—counsel can help you decide if it’s worth cutting off your Weiner.

Lauren E.M. Russell is an attorney with Young Conaway Stargatt & Taylor, LLP, practicing in the firm’s Wilmington, Delaware, office. She may be contacted at lrussell@ycst.com.