Off-Duty Misconduct and the "Workplace Nexus"

Employee discipline resulting from Law Enforcement Off-Duty Misconduct has been a topic of extensive debate wherein strong arguments supporting and refuting the same have been presented.

Typically, the opinion shared by the majority is that a LEO who is found to be guilty of a charge of misconduct, whether it is against the agency's policies and/or state statutes, should be disciplined accordingly. However, the standard for justifying any such discipline is rather complex since the burden falls on the employer to substantiate a "Workplace Nexus". In other words, there must be a connection between the sustained off-duty misconduct and the employer's interest.

Generally, off-duty discipline can be imposed if the employee's conduct: (1) harms the employer's business, (2) adversely affects the employer's ability to perform his or her job, or (3) leads other employees to continue to refuse to work with the offender. (W.E. Caldwell Co., 28 LA 434-47 [Kesselman, 1957]) Put another way, abstaining from off-duty actions that have one of those three effects is part of the employee's obligation to provide satisfactory work. (State of Ohio, 94 LA 533, 537 [Sharpe, 1990]) Discipline can be upheld if the employer can show the conduct's relevance or notoriety. Off-duty conduct is relevant when it relates to and harms the employer's business. Likewise, it is notorious when, although not otherwise relevant, it becomes so widely known and is so deplorable that it harms the employer's business interests.

Usually, the agency should examine the amount of adverse publicity and embarrassment to the employer, and the likelihood that the employer will lose business or suffer other adverse consequence if the employee is not disciplined. The mere showing that the employee has been arrested or involved in some misconduct as a matter of public record is insufficient. (Broward County Sheriff's Office, 121 LA at 1186.) As Arbitrator Nathan put it:

[The generally accepted standard among arbitrators is that proof of off-duty misconduct, even when serious and/or criminal, does not justify automatic discharge. An employer must show that the conduct has a demonstrable effect on the employer’s business. In this regard, saying it does not make it so. An Employer must do more than simply make the pronouncement that it has or will be injured by retaining an employee who has engaged in off-duty misconduct. It is always possible that any employer could theoretically lose a customer, lose face with the public or suffer some general loss of business reputation by employing “convicts”. An employer must demonstrate some meaningful nexus between the off-duty conduct and employee’s employment. See Hill and Wright, Chapter 5, 169-79.]

In the preceding case, Broward County Sheriff's Office, 121 LA, the arrest of an off-duty firefighter for misdemeanor battery, and his subsequent plea of nolo contendre to the charges were found not to justify the firefighter's termination. In overturning the firefighter's termination the arbitrator concluded:

[There does not exist a positive and unequivocal showing that there exists a connection between the off-duty conduct and a legitimate public interest that was or would be affected by it. Similarly said off-duty conduct of the grievant did not materially and substantially impair his usefulness as a firefighter nor did it affect the performance of his duties or publicly reflect adversely upon the public image of the grievant as a fire fighter or of the Broward County Sheriff's Office as a public body.]

In short, it is apparent that unless a connection is established between the off-duty conduct and the agency's interest, it is almost probable that any discipline imposed is capricious, arbitrary, and would, in most instances, be overturned through litigation.

The next post will discuss the Garrity Warning and its relation to the complaint process typically investigated by an agency's Internal Affairs Division.