Fire Employee for Behavior Off the Job?

Question.  Can I fire a married employee who is dating another man (not her husband)? We’re in a small town and this lady is starting to be the brunt of a lot of jokes.  Unless you have a union or employee contract which states otherwise, in most cases you can terminate an employee for behavior you find unacceptable off the job. But the employee will then generally qualify for unemployment benefits. Why? In most situations like this, the cause for the firing is behavior which is not job-related.

This is the first key question you should ask here. Can you fire an employee for behavior off the job and still deny the employee unemployment benefits? The answer to this question is almost always “No.”

A rather typical case involved a motel employer with a rule stating employees must “maintain high integrity and morals, both on and off the job.” The motel fired an employee who had an on-going affair — off duty — with an individual who was a frequent patron of the employer’s motel.

The unemployment ruling, in favor of the employee, concluded even if the employee’s conduct violated the employer’s “high integrity and morals” rule, that ” the violation was not ‘in connection’ with the claimant’s employment.”

To deny unemployment benefits to an ex-employee, in a case like this, you would have to show the employee’s private behavior off the job seriously damaged your reputation. Or, the employee’s private behavior off the job severely interfered with his or her ability to represent you on the job.

Such a case might involve a company executive or a company salesperson. If the private behavior of an employee in such a position interfered with the employee’s ability to successfully represent the employer, in his or her role as an executive or a salesperson, you could argue the “cause” for termination was job-related.

Here’s a second key question: Can you fire an employee for behavior off the job without risking a legal action — such as a wrongful discharge lawsuit — by the employee?

There are a number of possible risks if an employer terminates an employee for behavior away from work. Some examples:

• In a termination caused by the employer’s personal judgment that an employee’s behavior is “immoral,” if the employer publicizes the reason for the termination, the employer could face a defamation lawsuit by an angry employee.
• If an employee is terminated for involvement in religious-related activity outside work (such as attending a rally for a religious-based issue related to a minority culture) the employer could face a religious discrimination or minority discrimination charge.
• If an employer terminates a female employee because her romantic affair outside work is causing “scandal,” but does not terminate a male employee who is involved in a similar affair, the employer could face a sex discrimination charge.

While it is understandable that you may be outraged about your employee’s behavior, don’t act without extreme caution. Talk to your professional adviser to get some clarity on what actions you can safely undertake.