A number of incidents have surfaced recently in which neighbors or passers-by have called police to report African Americans engaging in seemingly ordinary pursuits. Examples include calls to investigate a college student napping on a couch in her dorm, some friends grilling in a public park, and an 8-year-old girl selling bottled water in front of her home. If a Minnesota employer identified one of its employees as the caller or instigator of such a dispute and wanted to take action, would a termination stand up in court?
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Would 1-to-1 Have Been Better than 9-1-1?
The rash of recent neighbor-on-neighbor police calls has generated quite a bit of online attention. In most cases, the police arrived and successfully dialed back the conflict without further consequence except perhaps for the infamy derived from having millions of people view the videos online, publicly critique the behavior, and bestow unflattering nicknames. Some of the callers, like the one known as “Permit Patty,” now look back and regret their decisions.
In two such incidents, however, the people calling the police ended up losing their jobs even though the events in question occurred during nonworking time and had nothing to do with their regular employment. In one case, a woman whom the Internet has dubbed “Pool Patrol Paula” aggressively confronted an African-American teenager she thought did not belong at the neighborhood swimming pool. After a video of the incident went viral, officials with the skin care products company Rodan + Fields announced that the woman was no longer affiliated with their enterprise.
In another swimming pool incident, a white man serving as the neighborhood pool chairman demanded to see identification verifying that an African-American family using the facility were neighborhood residents. Within just a few days after the video was seen by more than four million viewers, “I.D. Adam” had lost his day job as well. In a message posted for all to see, his former employer announced that his behavior “does not reflect the core values of our Company, and the employee involved is no longer employed by the Company in any respect.”
Neither incident took place in Minnesota, but what if they had? Can Minnesota employers fire poolside provocateurs or other cell phone crusaders if they conclude that this kind of very public off-duty behavior reflects poorly on their company? The answer in most cases is a very resounding “yes.”
Except in very specific circumstances (e.g., the use of lawfully consumable products, which is protected by Minnesota statute), off-duty conduct isn’t outside a private-sector employer’s reach under either federal or Minnesota law. Therefore, a Minnesota employer could lawfully conclude that an employee’s off-duty altercation, or any publicity that might arise from it, is a sufficient justification for termination.
Called out by Their Employers
Certainly there are exceptions. For example, if an employee is covered by a collective bargaining agreement that permits discharge only for just cause, a termination may be difficult to sustain. Most arbitrators will look to factors such as the likely absence of a relationship between the act and the work assignment, as well as the probable lack of notice that such behavior was prohibited, in finding that the termination wasn’t for just cause. A private agreement identifying the conditions for termination also would be an exception for many of the same reasons.
Similarly, if the reactive behavior related to the legitimate report of a violation of law, the employee might be able to claim protection under Minnesota’s whistleblower statute. Whistleblower protection, however, requires that the report be made in “good faith.” That will be difficult to prove in a situation when, as in all of the above cases, the reporting individual fails to engage the object of his scorn in civil discussion or reasonable inquiry, electing instead to call the police on a child, a neighbor, or just a group of people minding their own business.
Moreover, even if the accusers have the law on their side, it seems likely that a termination decision would still be justified if it’s based on the employee’s behavior rather than on the decision to report illegal behavior. An employee who unreasonably initiates a conflict, or who does so in a discriminatory or aggressive manner, isn’t going to be shielded as an innocent whistleblower.
Public-sector employees have greater latitude in their off-duty behavior, but even so, the right to engage in free speech probably wouldn’t protect an individual who emulated Pool Patrol Paula and initiated an inflammatory confrontation.
The Last Word
This article isn’t intended to condemn people for caring about what happens in their community. After all, we constantly are urged to “say something if you see something.” In this age of cell phone cameras and social media, however, an employee engaging in escalation and confrontation should know that the incident is likely to be recorded and posted online. If that happens, the employer will get to make the final call.
The author can be reached at dmerley@felhaber.com.