OFF-DUTY MISCONDUCT Anil S. Karia, Tedesco Law Group Jeffrey P. Chicoine, Miller Nash LLP Lynn Feekin, LERC.

OFF-DUTY MISCONDUCT

Anil S. Karia, Tedesco Law Group

Jeffrey P. Chicoine, Miller Nash LLP

Lynn Feekin, LERC

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Introduction

Hypo.

Who we are.

What’s in store for the next 90 minutes.

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Core Issue

“How far may an employer reach into an employee’s private life?”

Carlton J. Snow, The Long Arm of the Boss: Off-Duty Conduct and the Reputation of the Employer

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Off-Duty…Off-Premise

Not just off-duty … off-premise.

What happens when a public employee: Commits a crime? Engages in highly publicized, unpopular

activities? Posts lewd messages on Facebook?

Balance: employee rights v. employer’s reputation

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Multiple Sources of Law

Our focus today: An arbitrator’s analysis of contractual just cause provision.

Don’t forget: Constitutional issues – both Federal and State. State law – PECBA. Non-retaliation/discrimination/whistleblower statutes. Employment contracts. Civil service rules. Accountability for Schools in the 21st Century Law

(Teacher Fair Dismissal law )

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Free Speech/Association

Erosion of free speech/association rights for public employees. E.g., Garcetti – official duties v. private citizen

Different standards Public employees v. general members of public

Off-duty speech rights – not absolute

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Free Speech/Association

Public employee cannot be disciplined:

If speaking on matter of public concern;

Unless employee’s interest in such speech is outweighed by employer’s reasonable belief that speech will disrupt or undermine employer.

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Free Speech/Association

Melzer v. Bd. of Educ., City of New York, 336 F3d 185 (2d Cir 2003). 

First Amendment right of free association.

Not absolute for public employees.

30-year NYC teacher.

Member of the North American Man/Boy Love Association ("NAMBLA")

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Free Speech/Association

Employee was a self-described pedophile.

Never engaged in any illegal or inappropriate conduct at school.

Leaked NAMBLA meeting video.

Media attention; school sit-in; parent threaten to remove kids.

Termination upheld.

Workplace Disruption > Employee’s Rights.

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Due Process

Procedural due process – Loudermill.

Government can’t take property without notice and opportunity to be heard.

Integrated in just cause analysis.

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PECBA Issues

Under ORS 243.662: “Public employees have the right to form, join and

participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with their public employer on matters concerning employment relations.”

Short version: right to engage in protected, union activities.

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PECBA Issues

Protected: Organizing while off-duty.

Not protected: Venting personal concerns. Unrepresented person threatening strike.

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Just Cause

Off-duty conduct. More than just the “Kesselman” factors.

Has the employer proven the alleged misconduct? E.g., Did the employee actually send the tweet?

Was there due process? E.g., full and fair investigation; Loudermill

Is the level of punishment appropriate? Suspension v. termination

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Kesselman Factors

General Rule: An employer may not discipline an employee for off-duty conduct.

Exception to the Rule: Kesselman factors.

Has the exception swallowed the rule in the public sector?

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Kesselman Factors

Three Kesselman Factors

The employee’s conduct must:

(1) Harm the employer’s reputation or product;

(2) Render the employee unable to perform his duties or appear at work; or

(3) Lead to refusal, reluctance or inability of other employees to work with the employee.

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Kesselman Factors

Nexus Requirement:

There must be a reasonable link between an employee’s off-duty activity and the employer’s legitimate business interests.

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Harm to the Employer’s Business

Four “sub”-factors:

(1) Source and degree of any publicity;

(2) Type and seriousness of misconduct;

(3) The nature of the employee’s position with the employer; and

(4) The nature of the employer’s business.

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Publicity

Did the publicity harm the employer?

Factors:

i. Mentioning the employer by name in the publicity;

ii. Size of the community;

iii. Source and degree of publicity;

iv. Position held by the offending employee;

v. Nature of the off-duty activity.

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Publicity

Is the employer mentioned by name in the publicity.

Police officer arrested for off-duty DUII

v.

Portland Police Bureau Officer arrested for off-duty DUII

City of Evansville.

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Publicity

Size of the community

Eugene, OR public works employee arrested for disorderly conduct.

v. Drain, OR public works employee arrested for

disorderly conduct.

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Publicity

Source and degree of publicity

Front page of Oregonian.

Page 5 of Metro section of Ashland Daily Tidings.

Public Facebook page.

Private Facebook page.

Tweet.

Blog.

Chicago Transit Authority

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Publicity

Position held by the offending employee;

Police officer. Firefighter. Teacher.

------------------------ Public works. Clerk. Custodian. Bus driver.

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Publicity

Position held by the offending employee

Lane County v. AFSCME IT employee Felony drug possession Reinstated

Police officer … different outcome.

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Publicity

Nature of the off-duty activity.

Criminal conduct.

DUII v. theft v. assault v. DV

Free speech issues.

Union activities.

Social media.

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Publicity

Two evidentiary approaches to publicity.

Majority position: Infer reputational damage to employer.

Egregious conduct + widely covered in media + names employer.

Minority position: Direct proof of reputational damage.

A concrete link between off-duty conduct and harm to employer.

Boycott; public calls for resignation.

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Kesselman Factors

Three Kesselman Factors

The employee’s conduct must:

(1) Harm the employer’s reputation or product;

(2) Render the employee unable to perform his duties or appear at work; or

(3) Lead to refusal, reluctance or inability of other employees to work with the employee.

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Can The Employee Do The Job?

Fact intensive.

Example: Employee in county clerk’s office; handles money.

Accused of off-duty attempted theft

(Trying to break into an ATM to support a gambling addiction.)

v.

Accused of DUII.

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Can The Employee Do The Job?

OSEA v. Springfield Sch. Dist.

Off-duty DUII.

Couldn’t drive to work.

Reinstated.

Accommodate under past practice.

E.g., hardship permit

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Will Other Employees Work With the Charged Employee?

Fact-intensive.

Example:

Off-duty assault of co-worker at a bar.

Affair with a co-worker’s spouse.

General dislike of charged employee not enough.

Quaker Oats, Inc.

Shooting wife is enough.

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Portland Firefighters case – Arbitrator Abernathy

1994 – off-duty firefighter driving back from coast

“road rage”

No contest to intimidation = misdemeanor.

10 days jail; 2 years probation; fine; community service; anger management classes.

Extensive media coverage.

Number of phone calls to management.

Firefighter held to higher standard.

Firefighter admitted he committed the bad acts.

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Portland Firefighters case – Arbitrator Abernathy

Arbitrator:

Discharge overturned.

No nexus between off-duty conduct and job.

No “concrete evidence” that adverse publicity caused negative impact to employer.

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Portland Firefighters case – Arbitrator Abernathy

Nexus analysis:

(1) Violent off-duty conduct by an employee who deals with the public as a firefighter;

(2) Dangerous driving by an employee who is required to have a license to drive;

(3) Disrespect for and offensive conduct to members of the general public that firefighter is sworn to serve and protect; and

(4) Widespread publicity about the incident that clearly linked the employer and employee.

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Portland Firefighters case – Arbitrator Abernathy

So…How does this guy keep his job?

Majority v. minority approach regarding publicity

Arbitrator adopts minority approach.

Need hard evidence of “a demonstrable adverse effect” on the employer.

Conclusion: “I do not consider the negative publicity had a ‘demonstrable adverse effect’ on the Fire Bureau’s mission.”

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Hypos

Off-duty misconduct cases…fact-intensive.

Cheat sheet.

Both sides of the coin.

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Conclusion

“[A]s a general rule, what an employee does is none of an employer’s business.”

“As it turns out, an employers reach into an employee’s off-duty activities is quite long.”

“No bright line can be drawn between where an employer’s reputation ends and an employee’s privacy begins.”

- Carlton J. Snow