OFF-DUTY MISCONDUCT

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

2. Introduction • Hypo. • Who we are. • What’s in store for the next 90 minutes.

3. 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

4. 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

5. 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 )

6. 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

7. 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.

8. 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")

9. 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.

10. Due Process • Procedural due process – Loudermill. • Government can’t take property without notice and opportunity to be heard. • Integrated in just cause analysis.

11. 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.

12. PECBA Issues • Protected: • Organizing while off-duty. • Not protected: • Venting personal concerns. • Unrepresented person threatening strike.

13. 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

14. 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?

15. 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.

16. Kesselman Factors Nexus Requirement: • There must be a reasonable link between an employee’s off-duty activity and the employer’s legitimate business interests.

17. 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.

18. 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.

19. 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.

20. Publicity • Size of the community • Eugene, OR public works employee arrested for disorderly conduct. v. • Drain, OR public works employee arrested for disorderly conduct.

21. 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

22. Publicity • Position held by the offending employee; • Police officer. • Firefighter. • Teacher. ------------------------ • Public works. • Clerk. • Custodian. • Bus driver.

23. Publicity • Position held by the offending employee • Lane County v. AFSCME • IT employee • Felony drug possession • Reinstated • Police officer … different outcome.

24. Publicity • Nature of the off-duty activity. • Criminal conduct. • DUII v. theft v. assault v. DV • Free speech issues. • Union activities. • Social media.

25. 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.

26. 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.

27. 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.

28. 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

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.”

34. Hypos • Off-duty misconduct cases…fact-intensive. • Cheat sheet. • Both sides of the coin.

35. 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