Previously we discussed some basics of discipline, discharge & documentation for work-related instances. Today we will talk about the same principles for off-duty conduct. As stated in our last blog, a new employee should be familiar with your expectations of their off-duty conduct as well as their at-work conduct. You should have a written policy regarding the off-duty conduct you prohibit. This should include activities such as social media postings, harassment, moonlighting, criminal activity, and drug & alcohol use, to name a few.
Once you have information about an employee’s off-duty conduct and before you decide to discipline, conduct an investigation to consider if any legal factors need to be considered:
- anti-discrimination and anti-retaliation laws
- medical or ADA issues
- employment contracts and handbooks
- collective bargaining agreements
- constitutional rights such as the 1st Amendment (freedom of speech) and the 2nd Amendment (right to bear arms)
- National Labor Relations Act (NLRA) (particularly for social media postings and group affiliations)
Disciplining an employee for off-duty conduct that may be protected can get you into trouble. Don’t run through your discipline process without ensuring you have researched legal issues that could be the start of expensive litigation. This includes checking for any state or local laws that may protect the questionable activity.
Further investigate to find out whether this activity affects the employee’s job performance or the workplace. When is this activity taking place? Is it just before an employee’s shift and the activity may hinder the employee’s job performance or become a safety concern? How did you come to learn of this activity? Is this activity affecting the company’s public image? Answering yes to as many of these questions as possible will add to the validity of your disciplinary actions.
Documentation –
As in our previous blog, make sure you maintain complete accurate records. Adhere to company policies and review how the employee may have violated them. Document each transgression noting the date of the incident, date of the warning, and every discussion of progressive discipline – noting only facts not opinions. Documenting the entire process will help you in the event an employee makes a claim of discrimination or retaliation. You need to show that the discipline was warranted due to performance or behavior.
After the discussion, have the employee sign an acknowledgement of the meeting. Let them know by signing they are not agreeing with the discussion or decision, just that it took place and what was reviewed.
Note: Remember that properly documenting the process never changes. While each disciplinary situation is different, take into account how you have handled other instances and make sure you are applying your discipline process fairly. If you have questions about your progressive discipline process, particularly if a termination is involved, or how to conduct a proper investigation, contact your general counsel to discuss the situation.
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EAF members can call us at 407.260.6556 and speak with an HR Professional or our associate attorneys if they have questions about discipline, discharge or documentation.
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