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Misconduct in and out of the workplace

1 Robert Levine

Many years ago a colleague of mine was pressured by management to retire after allegations of sexual misconduct against him became public. I remember being bothered about that at the time, as the specific allegations were about conduct that had happened in his home and had nothing to do with the workplace. Management’s reasoning was that, as the orchestra occasionally played for children, the allegations were indeed related, even though the allegations (which were were confirmed by my colleague, as I recall) had nothing to do with individuals who by any definition could be considered children..

I’ve had recent cause to revisit my thinking on the subject of misconduct outside the workplace and how managements should, and should not, respond to it. It’s been a useful exercise.

Obviously misconduct in the workplace is a legitimate concern of management. How managements can deal with it can be affected by a collective bargaining agreement covering the employee in question. But all CBAs I know have provisions for dealing with misconduct by covered employees. “Misconduct,” of course, is different from the inability to perform one’s job according to management’s expectations, although not all CBAs make the distinction, instead lumping them both under the category of “dismissal for just cause.”

But why does misconduct outside of the workplace justify employers taking action against employees? The obvious justification is that such conduct, while initially outside the workplace, can easily be a precursor for similar conduct within the workplace. A staffer who embezzles funds of an outside organization on whose board he/she sits is an obvious risk to do the same to his/her employer, assuming he/she is in a position to actually cook the books. Of course, such egregious conduct will generally result in criminal sanctions - like prison time - that will render the employee unable to do his/her job anyway.

Someone who drives drunk on a vacation might be seen to be a risk to drive drunk while on company business, putting the company at risk of a killer lawsuit or the death of the employee and whatever other employees happen to be in the car at the time. A teacher who is guilty of child abuse at home could legitimately be viewed as a threat to his/her students as well. Politicians who campaign against prostitution are rightly in danger of being defeated at the next election if they are discovered paying someone for sex, even if they’re not on the floor of the US Senate at the time.

But there is misconduct, and even illegal behavior, outside the workplace that has no realistic impact on the individual’s ability to function well in the workplace. I felt at the time that the misconduct of the colleague I mentioned above was in that category. It is not uncommon, I suspect, for such misconduct not to even become known to the employer. Lots of people have broken lots of laws over the years without their employers choosing to make an issue of it, even if they did find out about it. Stories are legion in our business about people in leadership positions having misconduct covered up when such misconduct was viewed as not relevant to their job performance and their continued employment was considered valuable.

The phrase “covered up” suggests where the problem lies, especially for high-profile nonprofits like orchestras. Nonprofits are more at risk from reputational issues than are companies that make widgets. People generally fund widget companies solely by buying widgets, and such decisions are usually based on the perceived value of said widgets to the customers and not how people feel about Widgets Inc. But orchestras get much of their income through donations, and donors often choose not to fund institutions whose values they don’t believe they share.

But nonprofits tend to overreact in situations where an employee’s personal misconduct becomes public knowledge - and, or course, sometimes it becomes public knowledge only because the employee’s public profile is heightened because of who he/she works for.  Some potential donors may shy away from an institution because one of its employees has been caught in the public spotlight in an unflattering way. Others might find action against the employee unfair, and shy away from donating on that basis as well. It’s hard to figure out in real time just how that’s going to balance out over the long term.

That’s partly why I believe that such issues - like most issues - are best dealt with on a principled basis, rather than ad hoc. I suspect the soundest principle in these cases would be to deal with misconduct outside of the workplace that becomes public knowledge exactly as it would be dealt with if no one were ever to have heard of it. If the misconduct, by its inherent nature, threatens to manifest in the workplace, it’s a problem. If it truly is personal, and not likely to have an effect on how the person in question does their job, it’s not the employer’s business. Whether or not it becomes public shouldn’t enter into the calculation.

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  1. Comment by Rochelle Skolnick
    December 13, 2019 at 8:29 AM

    Robert: I didn’t see this when you first posted it-interesting thought experiment. There is a whole body of law dealing with how off-duty misconduct should affect employment. In the collective bargaining context, of course, the ultimate inquiry is whether the conduct in question constituted just cause (which itself has a thoroughly developed definition) for discipline or discharge. In general, for off-duty conduct to have ANY impact on employment there must be a nexus between the two and generally we don’t allow employers to predict that off-duty misconduct will lead to the same kind of conduct on-duty (this, FWIW, is a lot like the way we limit the use of “character evidence” in court). That said, your examples of the child abusing teacher and the embezzling money handler might be the best candidates for discipline because there is arguable a close connection between their actions off-duty and the work they do (although the facts can make a huge difference in cases like this). On the other hand, the vacationing drunk driver probably would not satisfy the nexus test unless s/he actually has substantial driving responsibilities at work and maybe then only if the drunk driving incident resulted in a loss of license. Arbitrators are generally pretty good about separating on-duty from off-duty conduct and holding employers’ feet to the fire on the just cause standard. Sometimes the reputation issue comes up but even then the employer has to prove it has ACTUALLY been harmed by the employee’s misconduct (e.g., no one came to concerts after they saw on the news what employee had done). Think about the parallel to performance standards: I think we would strenuously argue a MD shouldn’t be allowed to discipline/discharge a symphony musician based on his/her performance at a wedding gig. It’s the same basic idea-what you do off-duty, by definition, is not work you do for the employer and therefore cannot form the basis for discipline.
    Rochelle