How to Handle Off-Duty Employee Misconduct

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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.

Team members can still be held accountable for off-duty conduct with work peers. Always know your audience. As an example, just because you may be having drinks with work peers after work, don't assume you're free to be open (telling inappropriate jokes, flirting, etc.). Those outside interactions may create an uncomfortable environment for peers in the workplace, and could ultimately impact your employment. Tory, Sr. HR Business Partner, BambooHR.

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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. “One, she works for the government, and she flipped off the head of the state. Two, it’s a bad representation of the company she works for that they’d hire employees who don’t respect authority. Whether we like Trump or not, he was the sitting president.” VP of HR Operations | US “If she was not working for a government contracting firm, depending on if it was a private firm and they had a code of conduct policy this scenario didn’t apply to, I would disagree. But definitely because it was a government contracting firm, and they had a specific code of conduct policy she was violating, I don't think I would handle it any differently. That was grounds for termination.” HR Manager | US “Yes, sadly for her. If you have a policy at work, you need to follow that.” Sr. Manager | US

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.

“I don’t think this was handled properly. Even though there’s no free speech in the workplace, on the public side of things, there’s protections. I would take the middle road here. I’d say, ‘Listen, in the future, realize you represent us even though this is your private life. Be a little bit more mindful and cognizant of the fact we’re a government contracting firm. There’s a code of conduct. Just be cool next time. There’s many different avenues and vectors to express your discontent, but—you know—don’t go viral.’” Founder of Management Consulting Firm | US

“She wasn’t at a trade show wearing the company colors or acting on their behalf. She wasn't working. What this person chose to do outside of work is her concern. As long as the employee doesn't bring their actions or behavior to work, and as long as they’re still able to do the job that I hired them for, I wouldn't have fired the person.” Head of Manufacturing | Canada “Condemning her actions is good, but firing? Come on now, that's too much. You're doing too much over flipping someone off. If you can't handle just sitting down and talking to the employee, I don't know what to tell you. No, it wasn't handled correctly. That was completely out of line.” HR Manager | US

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. “I think this one was handled appropriately because it was a physical threat. If you're lurching towards somebody, that shows really poor judgment, especially on the insurance side of things. You need to have an even temper.” Founder of Management Consulting Firm | US

“I think it was justified. He’s in a customer relations role. You have to have common sense. This is a bad representation of the company. People may wonder why you’re hiring people who don’t follow regulations, especially for something like this [a global pandemic]. Your behavior inside and outside of work is a representation of your family, or employer, your community, and how you were raised.” VP of HR Operations | US

“The agency mentioned their core mission and values, and I’d imagine those are to be there for the community and to be trusted advisors. You’re not being there for the community if you’re screaming and shouting like this in a Costco of all places, and you’re not being a trusted advisor if you’re being threatening. I can see why he was fired. That was outrageous. It was handled correctly.” HR Manager | US

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.

“This one's a little different. The company is saying the employee was terminated because the video conflicts with their values. But unless you specifically have a policy in place written that the employee has acknowledged they’ve reviewed as part of their onboarding process, they can't be terminated. Unless they're violating some sort of written policy or procedure, I disagree with the termination.” HR Manager | US

“As much as both of these scenarios might make somebody feel very angry, we have to make sure we don't terminate, persecute, or punish somebody for actions that happened outside of work that are none of our concern. If it was a misdemeanor assault or something like that, that's a whole other story. That person may not be bondable or meet the requirements of the job any longer. It would be okay to fire them in that case, but he’s not even wearing any branded stuff. I wouldn't fire them with cause, but I might look for a way to exit the person in a mutually beneficial manner.” Head of Manufacturing | Canada “I wouldn't just fire this person immediately. I believe everyone should have a second chance, plus this person wasn’t at work. Maybe a warning letter would be necessary, or some kind of punishment, but firing is a little bit too much.” Office Administrator | Canada

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:

  1. Gather the facts and pit that against our employee agreements, code of conduct, values, etc.
  2. 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.
  3. 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:

“We've actually been thinking of not allowing uniforms to be worn outside of work. Our policy will also prohibit interacting with employees that are working when you’re not. I feel that can lead to one thing or another. If you’re both off the clock, awesome, go ahead. Also, make sure you have them sign the policies and they’re brushing up on them at least every six months.” HR Manager | US

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.

“Part of onboarding and your annual reviews should include training on things like sexual harassment, HIPAA, fraud—all of those things. These trainings need to be in place to remind employees what their moral obligations are to themselves and the organization. This is to protect the org’s reputation. They need to be reminded, ‘You represent the company, whether you’re in or outside of work, especially as it pertains to the core values of the company.’” VP of HR Operations | US

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.

  1. Gather all relevant information, including the initial report, any supporting evidence, and statements from witnesses.
  2. Schedule confidential interviews with the involved parties, ensuring they understand the purpose of the investigation and their rights throughout the process.
  3. Maintain detailed records of all communications and findings.
  4. Assess the impact of the alleged misconduct on the workplace, considering company policies, legal implications, and the employee's role.
  5. Consult with legal counsel to ensure compliance with employment laws and regulations.
  6. 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.
  7. Communicate the outcome to the relevant parties while maintaining confidentiality and professionalism throughout the process.

“Every situation is different. You have to make sure you have all the facts before you rush to judgment. Make sure you have a formal policy and process for reviewing the facts, and not just basing your review on what people are saying. Talk to the employee and get their side of things as well. Then you can make a real judgment, having both sides of the issue.” Director of HR | US

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.

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