How to Handle Off-Duty Employee Misconduct
Imagine waking up one morning to jackpot-level engagement on all your company’s socials, with one catch—it’s all negative. And it’s all about something one of your employees did or said while off the clock. What do you do next?
Handling employee misconduct in the workplace is already a dreaded scenario for most HR pros, but when misconduct occurs outside of work, deciding how to act gets even more complicated. It may be a matter of protecting your company’s reputation or ensuring workplace safety, but there are also legal ramifications to consider, such as allegations of wrongful termination or defamation, if you don’t handle the situation with care.
So how and when should you respond publicly to allegations of off-duty employee misconduct, and how should you handle it internally?
We asked 12 HR professionals and people managers in the US and Canada, plus our own internal experts, how they would handle off-duty employee misconduct within the context of their roles. Here’s what they said, including tips for creating your own off-duty conduct policy for your employee handbook.
Editor’s Note: Quotes have been lightly edited for concision and clarity.
What Does Employee Misconduct Mean Outside of Work?
At BambooHR, our HR policy defines off-duty employee misconduct as anything that “adversely affects the company’s legitimate business interest or the team member’s ability to perform their job.” When BambooHR employees agree to the off-duty misconduct policy, they agree to participate in the effort to protect our company’s reputation and build a safe, productive workplace where we can all succeed.
Any of the following employee behaviors can threaten your company’s success, so it’s important to have policies in place, as well as a plan of action in the event an employee draws negative attention to your brand or breaches the company’s code of conduct outside the office.
- Social Media Misconduct: Posting offensive, abusive, or defamatory content on personal social media platforms that results in negative publicity for the company
- Criminal Activity: Engaging in illegal activities such as theft, fraud, assault, driving under the influence, or drug offenses
- Substance Misuse: Irresponsible use of alcohol or impairing substances that affects job performance or jeopardizes workplace safety
- Public Misconduct: Actions that conflict with the company’s values and harm the brand by association, such as being disruptive in public spaces or engaging in harassment or discrimination
- Violation of Company Policies: Breaking company policies that are intended to apply both inside and outside the workplace, such as confidentiality or conflict of interest agreements
- Misuse of Company Property: Using company property without permission during off-duty hours
- Inappropriate Relationships: Engaging in coworker relationships outside the office that could lead to conflicts of interest or claims of favoritism or harassment
Can You Discipline an Employee for Off-Duty Misconduct?
Yes, you can in certain situations, but there’s not a perfect consensus among HR professionals about the ethics of employers holding employees professionally accountable for their personal lives.
“It's none of my concern what people do outside of work,” says the head of manufacturing at a Canada-based firm, “as long as they come to work and do the job I've asked them to do, and they maintain the qualification for the business. I don't get to control somebody else's life when they're not at work.”
Many employers may not feel as strongly as this people leader, but most are likely to agree it’s ideal for the lines between the professional and personal to be as clear as possible. However, once the consequences of an employee’s behavior outside of the office threaten business interests, an employer may have no choice but to respond.
Whether the employee receives a written warning, is suspended with or without pay, or loses their position with the company should depend on the circumstances and severity of the misconduct, as well as the impact it’s had on the company’s reputation. But whatever the decision, it’s vital to receive appropriate legal counsel before any action is taken.
Off-Duty Employee Misconduct Examples: Were These Incidents Handled Appropriately?
We gave our survey respondents two examples of off-duty employee misconduct. Both incidents resulted in the employee’s firing and both made national news. We asked our respondents if they agreed with how each situation was handled, and the responses were mixed.
Example One: The Hand Gesture Seen Across the Web
In the first example, a cyclist was photographed raising a middle finger at then-President Trump’s motorcade as it left Trump National Golf Course in Sterling, Virginia, one weekend in 2017. The photo promptly went viral and the cyclist was fired from her job at a local government contracting firm after owning up to being the woman in the photo. The reason: the firm determined she violated their company’s code of conduct policy.
Five out of 12 (42%) of our respondents agreed with the termination for the reason given, with one respondent observing that flipping off the president as the employee of a government contractor would be like flipping off your boss.
However, 7 of the 12 respondents (58%) disagreed with the decision, pointing out the employee wasn’t on duty at the time the photograph was taken, and she wasn’t wearing anything in the photo that identified her as an employee of the company, such as branded clothing.
Example Two: Conflict in a Costco
In this example, a man was fired from his job at an insurance agency after a video of him having an altercation at a Florida Costco circulated the internet in 2020. In the video, he’s shown responding with aggression and physical intimidation after being asked about his lack of face covering, which Costco required at the time. He was soon identified online and linked to the agency, even though he wasn’t wearing any branded clothing.
The agency released a statement that read, “Thank you to everyone for their comments and messages raising awareness about a former employee. ... Their behavior in the video is in direct conflict with our company values and their employment has been terminated.”
Nine out of 12 (75%) respondents agreed with the agency’s decision, citing the person’s aggressive behavior, an inability to comply with common-sense regulations, and the conflict with the agency’s values.
Three respondents (25%), however, disagreed. One emphasized that values aren’t policy, and that terminations should be policy-based, while another remained adamant that off-duty employee conduct should remain off limits to employers. The third made the case for issuing a warning letter, but thought the firing was extreme.
Addressing Employee Misconduct Cross-Departmentally
If you don’t want to lose your job because of something you did off-the-clock or said on a personal social media account, “don’t go viral,” says one of our survey respondents. However, it’s extremely rare to go viral on a global scale, even intentionally.
For a growing or local business, though, an employee’s actions outside of work don’t even need to make the local news to have a negative impact on the company’s reputation within their immediate community.
Depending on the severity and scope of the misconduct, your HR team should seek input from your communications, marketing, and legal teams (or consultants) before moving forward.
Here’s what a few BambooHR experts from our marketing and communications teams have to say:
Marketing
Brenton, BambooHR’s VP of Marketing, said:
“If an employee did something outside of work that blew back on our brand, my knee-jerk reaction would be, ‘Well, sh**.’ Then we'd get to work. We’d:
- Gather the facts and pit that against our employee agreements, code of conduct, values, etc.
- Find a position and establish the right message to our customers and community as a whole. Depending on the situation, this might look like an apology and a clear articulation of our values and expected code of conduct, along with actions we've taken and/or will take.
- Act on those commitments.
We love our HR business partner function, and they’d be there from the start as we entered crisis management mode, consulting on how to do what's right for our employees and customers through the issue.”
Communications
Amanda, BambooHR’s Director of Corporate Marketing, said:
“This kind of employee incident is always possible, and we have crisis communication plans in place that include training for incidents just like this.
Your approach needs to be cross-functional and include comms, legal, HR, the exec team, etc., and your response needs to ‘meet people where they are.’ For example, depending on the incident, you might choose to address it on social media. You might consider a verbal statement from your CEO, or you might consider giving an interview with a friendly media contact. I've even had a situation where we chose a Reddit AMA. It’ll depend on the specific incident, your target audience, and what type of blowback you're getting.”
Advice for Building a Policy and Investigating Reports of Misconduct
Building an Off-Duty Conduct Policy
When the lines between work and life start to feel blurred, good policy helps you bring things into focus.
As a section of your employee handbook, your off-duty conduct policy should include language that defines what your company considers actionable misconduct, or off-duty conduct that could impact someone’s employment with you.
The policy could also emphasize how you value protecting the work-life balance aspect of your company culture, and keeping the personal separate from the professional, while making it clear that certain behaviors even outside the office can result in an employee losing their job.
Example language you can include:
- “While the Company does not seek to interfere with the off-duty and personal conduct of its team members, team members are expected to conduct their personal affairs in a manner that does not adversely affect the Company’s integrity, reputation, or credibility.”
- “Illegal or unethical off-duty conduct on the part of a team member that adversely affects the Company’s legitimate business interest or the team member’s ability to perform their job will not be tolerated, and can result in disciplinary action up to and including termination.”
Once you have your policy in place, don’t forget to regularly give your employees refreshers of the material with ongoing trainings. Collect their signatures at these trainings to indicate they understand and agree to your policies.
Investigating Reports of Off-Duty Misconduct
When investigating reports of off-duty employee misconduct, follow a structured and impartial process to make sure you’re being thorough and fair.
- Gather all relevant information, including the initial report, any supporting evidence, and statements from witnesses.
- Schedule confidential interviews with the involved parties, ensuring they understand the purpose of the investigation and their rights throughout the process.
- Maintain detailed records of all communications and findings.
- Assess the impact of the alleged misconduct on the workplace, considering company policies, legal implications, and the employee's role.
- Consult with legal counsel to ensure compliance with employment laws and regulations.
- Compile a comprehensive report summarizing the investigation's findings and recommend appropriate actions, which may range from writing up an employee for misconduct to making revisions to your policy.
- Communicate the outcome to the relevant parties while maintaining confidentiality and professionalism throughout the process.
A Good Off-Duty Conduct Policy Provides Peace of Mind
Crisis management and conflict resolution as a result of employee misconduct is difficult enough to deal with inside the workplace. Worrying about what happens outside the workplace, too, is a recipe for burnout, so many HR pros try hard to keep their personal lives separate from work. They encourage their workers to do so as well and often choose not to follow employees on social media. However, the longer you’re in business and the more you grow, the more likely incidents will happen that require your attention and intervention, despite your best efforts to prevent them.
With good policy and a response plan that includes cross-departmental input and expertise, you can rest easy knowing you’re prepared, no matter what goes viral when you’re off the clock.