Off Duty Conduct

MNJane · May 2003

We have an interesting situation with regard to an employee's off duty conduct. This employees maintains an electronic journal on his website in which he writes about many things, including derogatory opinions, including some inappropriate sexual references, about some of his coworkers. Needless to say, his coworkers have become aware of the website and have either read it (presumably on their own time) and/or relayed the info contained in it to others at work. This, in turn, has caused a significant disruption in the workplace with many employees becoming upset.

A few months ago, the manager had a verbal discussion with the employee about the impact his website was having and things quieted down. Things have now heated back up and the manager is considering further action. I would like to recommend that they issue a final warning for contributing to a hostile and disruptive work environment with termination to follow if the conduct continues. However, we have some lingering concerns about the indirect relationship between the conduct and the workplace since the website is entirely operated by the employee on his own time and away from the workplace. In addition, we do not believe employees are viewing the website at work. Management is also concerned about infringing on the employee's first amendment rights. I would appreciate any thoughts on this.

Nurse Recruiter · May 2003

Do you have a policy addressing off duty conduct?

We have a policy that states that all employees must conduct their personal affairs with the utmost integrity and requires that all employees:
1. Conduct themselves in a manner that does not reflect unfavorably on either the organization of fellow employees
2. Conduct themselves in such a manner that his / her actions do not affect his / her ability to perform the full responsibilities of his / her job.

If you don't have such a policy, perhaps now is the time to implement one and have every employee sign that they have been given the new policy.

scottorr · May 2003

[font size="1" color="#FF0000"]LAST EDITED ON 05-21-03 AT 09:37AM (CST)[/font][p]Our policy views harassment as harassment before, after or during work. If you don't take action, one of the victims of the harassment may sue you as well. I do not see this issue as being any different than one employee verbally assaulting or stalking another employee outside of the office. If you are aware of the harassment, you are responsible for reacting to it. I think you are okay to take further action. As a side note, if another employee is not being harassed you may want to be more cautious.

Don D · May 2003

I disagree. An employer's obligation to take action does not extend into the community at large, if the action is not taking place AT WORK or at a company sponsored function. That would be a matter for the police.

Balloonman · May 2003

Do you honestly think people are not viewing this website while at work? 8-|
My $0.02 worth.
DJ The Balloonman

Don D · May 2003

Don't think that at all. I do think that if ees are viewing it at work, that's a disciplinary opportunity for the company, not an obligation to discipline somebody who works on his website at night at home. Unless the company has some written policy addressing the impact of personal behavior affecting the company.
The part of the comment I took exception to was a statement that an employer is obligated to deal with harassment that takes place away from the workplace. That's a matter for civil authorities. Fire him perhaps, but no obligation to investigate and take it up as a sexual harassment investigation if he's doing it somewhere else. Where are the lawyers when you need them?

Balloonman · May 2003

Don I was refering to the original post when MNJane said they do not believe they are viewing the website at work.................everyone from work has probably looked at it while at work by now.
My $0.02 worth.
DJ The Balloonman

scottorr · May 2003

My point was that the work place was being disrupted and our code of conduct policy specifically addresses this issue. The police may be called in to address this issue in addition too, rather than being mutually exclusive.

mbeam · May 2003

[font size="1" color="#FF0000"]LAST EDITED ON 05-21-03 AT 08:11PM (CST)[/font][p]This is one that I would recommend running past an attorney. Initial thoughts are that the individual may be opening himself up to lawsuits from his co-workers.

Would also focus on the impact it has on job performance in the workplace. It is his choice to keep this website but it's also our responsibility to keep a respectful workplace.

If there are individuals who refuse to work with him, I would address it with him to see what he's going to do to correct this as it affects the ability to run your business.

Parabeagle · May 2003

The moment the employee's off-duty conduct (1) involved, by his own actions, his coworkers; (2) resulting in his coworkers discussing it on company time; and (3) such discussion rose to the level of creating a disruption in the workplace, it then becomes a problem for management. Our company, too, has a policy prohibiting off-duty conduct that reflects unfavorably upon the company and I would rely on that premise to discipline the employee.

safety · May 2003

I agree with Parabeagle, we have a policy that prohibits "unlawful or improper conduct off the plant premises or during non-working hours which affect the employee's relationship to the job, fellow employees, supervisors or the Company's products, property, reputation or good will in the community."

HRsage · May 2003

I'll chime in here and side more so with Don. A website done outside of work is different than a stalker or verbal assault because a website has to be accessed by the "victim". The victim has to go to the website and see what it says about them, whereas a stalker goes to the victim and so the victim has no choice in the matter. If this website does contain material that is slanderous to individuals at the workplace then it should involve the civil authorities and have them deal with it. Or they should stop going to the website and seeing what is there. Basically they need to either get the authorities involved or get over it.

Unless the harassment is taking place at work or if you have a policy pertaining to conduct outside of the workplace I would think that there isn't much you could do. If you DO have a policy then follow that to the fullest extent.

There was a website here in CA recently that was shut down because it was brought to the attention of the authorities. The website was done by a student and it contained harassing comments about fellow classmates. The school couldn't shut it down, but the police did.

scottorr · May 2003

[font size="1" color="#FF0000"]LAST EDITED ON 05-21-03 AT 02:12PM (CST)[/font][p]I did not say for them to shut the website down, that is for the authorities to decide, however if what is being said or written is disrupting the workplace that's when it is time to take action. Here is an example If a coworker of yours were at a party and told a friend of another coworker that you two were having an affair. You come into work on Monday and the rumor mill was hard at work and soon everyone was talking about it. Would you just get over it or would you expect some action to occur? My company has a policy that addresses this issue and we would terminate.

WOCO Frank · May 2003

What is the downside to firing this guy?

Now, compare you answers to the downsides for allowing him to continue.

Make your choice.

pecohr · May 2003

I agree that I would want something to happen but I think that I would, as the individual involved, screen print the website pages dealing with the slanderous or libelous (I can never remember which deals with printed vs verbal material)item/s and seek legal recourse to stop the harrassment. I would act personally rather than expect my employer to resolve an issue with which they are not directly involved. I would then, as the HR representative, address the rumor control problem that is perpetuating the issue within the workplace...

I know i've got my rose colored glasses on today!

good luck with a tough issue,
Stuart

HRsage · May 2003

[font size="1" color="#FF0000"]LAST EDITED ON 05-21-03 AT 02:26PM (CST)[/font][p]Scott if I were personally involved in the scenario you gave, I'd get over it. I could care less about rumors of that nature as I'm sure there are worse ones about me floating around. Unless there was a policy in place. Now if I had things on a website posted about me that were defaming my character I would take civil action against the proprietor of the website. I wouldn't hold the company accountable for actions done outside of work UNLESS there was a policy that should be upheld to that.

I do address rumors in the workplace and take appropriate action based on the situation.

As I stated- unless the company has a policy addressing conduct outside of work and the effects it has on the company and employees I would be hard pressed to investigate it as a harassment claim. I don't think companies are bound by law to make such policies, but I agree that it is wise to do so.

If the company DOES have the policy then follow it. If you DON'T have a policy make one. I'd fire the person, especially if it's an at will state. Will that change the postings on the website? No. Will it improve the morale of the rest of the company? Big time.

scottorr · May 2003

Okay, okay, okay I agree with your last statement. There is no law saying they have to do anything. However, if it were me I would.

WOCO Frank · May 2003

>>There is no law saying they have to do anything. <<

Is the website blog creating a hostile working environment due to its sexual content?

Again, weigh the downside of action vs. the downside of inaction.

MNJane · May 2003

Thanks to everyone for their comments. The issue is really the affect the website is having in the workplace. The comments are derogatory and extremely offensive and relate to numerous employees and managers. Even if the employees were not viewing the website, the rumor mill has become so rampant that several employees are ending up in tears each day. We do not intend to take action to shut down the website but we do intend to take action to ensure our employees have a safe and productive place in which to work.

Don D · May 2003

It's a dilemma for sure. Probably the legality of it is that the website is not provided by, sponsored by or condoned by the employer and liability therefore probably does not rest with the employer, beyond setting a policy on offensive conduct and materials. The employees, if anyone, are bringing or introducing the offensive material into the workplace through the employer's equipment, without authorization and probably in violation of company policy. Remove the offensive employee from this scenario and what you have is employees downloading offensive material and affecting the workplace climate. Still the liability is not the employer's unless it condones, participates in, promotes or allows the offensive material into the workplace.

On a more sane thought train, I think I might call him in, give him two days to completely wipe out any mention of the company and its employees from his website and tell him if he does not do that to your satisfaction, he will receive notice of termination of employment at the beginning of the third day. I would not give a rip what he might threaten or if he files a charge somewhere, as your actions are clearly not steeped in violation of the rights of any protected group. I would not worry about his UI claim either. Let him draw it. Get rid of him. Even if he does clean up the site, he bears close scrutiny. This mole will soon poke his head out of another hole in your backyard and his tunnels are everywhere.

Nina I · May 2003

I wholeheartedly agree with Don - I'd like to add that I would consider taking the action swiftly, just in case he decides to add anything to the website that could be construed as union organizing - that could bring the NRLB rushing in, not a happy thought.

Off Duty Conduct

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