Plant Services - November 2007 - (Page 64)

IN THE TRENCHES The real question is whether the employer should be concerned about off-duty activities. My take is that it probably shouldn’t unless the activities directly affect onthe-job activities. It’s tough enough establishing healthy and productive work environments without worrying about what employees do after hours. Moreover, it’s almost impossible to monitor off-duty activities. And it’s difficult to decide what level of a given activity is “excessive” enough to warrant company action. Acme should have a policy statement in its employee handbook that allows it to take action if the employee’s off-duty activities interfere with job performance, including affecting the health and safety of fellow employees, and addresses those activities that could reflect negatively on the company’s image and reputation. Acme needs a written procedure for adjudicating a violation of the policy, which might include warnings, rehabilitation and other avenues for correction before termination. Moreover, one has to be sensitive to other restrictions, for example, the Americans with Disabilities Act (ADA). (My favorite ADA case is of an addicted medical doctor who was fired for stealing narcotics from a hospital but was reinstated because the court ruled that drug addiction was a disability, and the hospital violated the ADA.) And yes, Acme has an obligation to determine if the affected employee has complied with whatever action the company decided was appropriate. Professor Homer H. Johnson, Ph.D. Loyola University Chicago (312) 915-6682 hjohnso@luc.edu An attorney says: Whether an employer ought to terminate an employee for off-duty conduct poses some questions. Legally, an employer can terminate an employee at will, any time, for any or no reason. And as long as a company treats similarly situated employees the same (i.e., all employees handling the company’s finances who are convicted of stealing from the till are fired), the employer shouldn’t be guilty of violating the discrimination laws. The question becomes what workplace consequences should follow from conduct outside the workplace for business reasons. Generally, there are two situations in which an employer should consider termination. The first occurs when the employee’s status in the company or the community (or both) is such that the employee’s conduct places the company in a poor light. Almost any felonious conduct in which a CEO engages would qualify. Any highly publicized conduct involving moral turpitude by a lower-level employee, such as sexually molesting children, would likely suffice. The second situation when an employer should seriously consider termination for off-duty conduct occurs when the conduct casts doubt on the employee’s ability to perform the job in a safe and satisfactory manner. For example, a CFO convicted of theft certainly should suffer the loss of his job. Perry falls into this category. As a safety specialist who focuses on the safe performance of work, he shouldn’t be driving a vehicle containing cannabis. Why is he keeping the drugs in his car if he doesn’t intend to use them while driving? Had the drugs been found in his home, the situation would have been completely different. But Acme acted wisely in disassociating itself from a safety specialist whose unsafe conduct outside of work suggested that he wasn’t fit to guide the company’s safety efforts. Julie Badel, partner Epstein Becker & Green, P.C. (312) 499-1418 jbadel@ebglaw.com November 2007 64 www.PLANTSERVICES.com http://www.plantservices.com/voices/in_the_trenches.html http://www.sulmac-deway.com http://www.sulmac-deway.com http://www.PLANTSERVICES.com

Table of Contents Feed for the Digital Edition of Plant Services - November 2007

Plant Services - November 2007 Contents New Tools Letters Let Us Know Where to Put the Gas Up and Running How are you Fighting Crisis? What Works Why is the Best Practice Transfer so Hard? Who are you Going to Call? Chained to Power Mobile Mindset Making Money in the Lube Lab Grabbing a Moving Target Bagging the BTUs Keeping Mellow Preserving Health and Safety The Power of Reliability Excellence

Plant Services - November 2007

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