Executive Director’s Message: March 2019
Oftentimes your Union represents its members for their conduct that arises as a result of an incident that takes place while they are off-duty. Those members find themselves facing potential discipline up to the termination as a result of that conduct. When this happens, the question is always asked, “Why am I being disciplined for something that happened while I was off-duty?”
Management can restrict an employee’s conduct at work or while performing their duties outside of their regular work location; however, conduct while off-duty is a slightly different issue. Management’s ability to control off-duty conduct is more limited mainly due to discrimination and privacy laws. However, that does not prohibit management from suspending of even terminating an employee for conduct that occurred off-duty. An employee can be disciplined if management can demonstrate that there is a connection, “nexus” with the employee’s conduct and the employee’s job.
Following are the views of professional arbitrators, who render decisions on disciplinary cases on this subject matter from a recent conference held by the Labor Arbitration Institute.
Off-Duty Misconduct: Still on-property
In these cases, management must prove “nexus” – the Latin word for connection. The employer must prove that whatever the grievant did off-duty and off-premises has a connection to a legitimate interest of the employer, and thus, some level of discipline satisfies the just cause standard.
At the Seattle conference this month, an audience member raised this case. Two arbitrators on the panel responded.
The grievant is a customer service rep at this transit agency. While off-duty and not in uniform, the grievant boards a bus owned by the agency and gets into an argument with other passengers. The incident was serious and came to management’s attention.
Is the fact that this incident took place on one of our buses a sufficient proof of nexus? If he had done this, while on-duty and on-premises, he would be disciplined for violating the respectful workplace policy.
I think so. But the first step in the analysis is that employees are entitled to a private life. What an employee does on their own time and not on company property is not the company’s business.
The employer can argue that this employee is responsible for upholding the decorum on transit buses. And he is acting contrary to his responsibilities. That is nexus.
If he had that argument with a passenger, but it was on the street, then I don’t think there is nexus.
This case reminds me about police officers. The officer does something off-duty but at a crime scene or with other officers. The department will argue that the incident reflects poorly on the department and that officers, even though entitled to a private life, are sworn to uphold the law 24/7. The question in these cases is the same as here: Are they acting contrary to their responsibilities as a police officer? The question is how close do they bring their activity to the employer. This gives the employer justification for getting involved.
I had a similar case. It involved an airline mechanic who was off-duty, but coming back from another city where he had fixed an airplane. And on his way back, he of course takes a flight on his employer’s airline. And probably drinking to excess, he gets into a terrible argument with the flight attendants. I upheld the discharge because he had a duty to his own airline not to engage in that kind of conduct. He was off-duty, but not off-property.
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