City Employees and Off-Duty Conduct Webinar by Scott Lepak

Uploaded by barnaguzysteffen on 10.09.2012

Good morning. It is Thursday, July 12, 2012, and I would like to thank you for joining
us today for this webinar from the League of Minnesota Cities. Iím your moderator Joyce
Hottinger, Assistant Director of Human Resources with the League of Minnesota Cities and Iím
joined by todayís presenter, Scott Lepak, attorney with Barna, Guzy and Steffen.
Scott has been representing employers on labor and employment matters since 1987 and is among
the leading labor attorneys in the State of Minnesota on matters affecting local government
and non-profit agencies.
He is also the city attorney for the cities of St. Francis and Becker, author of a treatise
on the Minnesota Public Labor Relations Act available on the Minnesota League of Cities
website, editor of the Minnesota Public Employer Labor Relations Association newsletter, a
member of the metro area chief labor negotiatorís round table and provides labor and employment
law counsel for the League of Minnesota Cities.
Heís a frequent lecturer on labor and employment topics and we are delighted to have him present
today on city employees and off-duty conduct.
Scottís presentation will provide some guidance when off-duty conduct is illegal, unethical
or harms the reputation of the city. Itís often hard to know whether or not the city
can discipline for that behavior.
Off-duty conduct is a tricky and every-changing area of employment law. There are issues associated
with freedom of speech and expectations of privacy that must be waived against the legitimate
interest of the city.
After the presentation, if time permits, we will turn to questions we have received in
advance of this webinar. You may also submit questions during the webinar. If you have
a question you would like to ask, please send it to Thatís
Also if you have any technical difficulties during the session, you can email
or call 1-800-925-1122. So letís get started. Scott?
Thanks Joyce. Welcome to todayís webinar. Oh my goodness, itís my very first webinar
so I would like to give a live shout out to the audience in the room next door upstairs
for joining me for this very first webinar that Iím giving. This is going to be kind
of an interesting experience for me. Iíve heard throughout the course of my life that
thereís a lot of people that would not go across the street to listen to me.
Well now you donít need to. Iíd also I would like to thank Joyce for not saying that Iím
an expert on off-duty misconduct because that would have been wrong and inappropriate. I
guess we should start off by saying if youíre in the public sector and youíre a public
employee and you want to find out what you can and canít get away with, youíve probably
come to the right place.
If youíre in the private sector, this stuff is probably going to apply to you as well
but when we get to the first amendment, you can go out for a smoke unless itís prohibited
in your work site. If youíre here because you want to find information about little
menís clothing and you went to LMC, this is the wrong website, but please donít leave
it might affect my ratings.
The working title for our webinar today is Stuff That Will Get You into Trouble. Off-duty
misconduct, the first thing we always talk about when weíre talking about off-duty misconduct
is what can we do, what canít we do.
We all want to know what off-duty conduct we can do and not get in trouble and what
we canít do. If weíre boring and bossy and we donít care about that, we still want to
know what the rules are so we can tell everyone else what to do.
The law of the states that Iíve lived in, Minnesota is probably ñ clearly the leader
in telling you what you canít and canít do. Lewis Black, one of my favorite comedians
had a standup routine where he talked about going to a bar in New York and he got near
the end of the night. He said, ìGee,î talking out loud, ìshould I have another?î And everybody
at the bar said, ìWell, if you have to work, I wouldnít do it. Probably not. You will
probably have a hangover and you wonít feel good tomorrow. What would your wife think?î
He said, ìOK.î
He went to a bar in Ireland and he asked himself the same question out loud when it came time
to closing. So should I have another? So everybody in the bar looked at him and said, ìOh, why
wouldnít you?î Minnesota pretty clearly is a state that likes to tell you what you
should do and what you should not do.
Our lifeís mission at the state I think is to make sure that nobody has any fun and it
turns out that life in the public sector is not always the box of chocolates we always
thought it was going to be.
On the plus side, Minnesotans are fairly cheerful on telling you what you can and canít do.
So if youíre looking for lists, yes, no, thatís what weíve got for you today.
Oh, actually, when we talk about the area, weíre talking about the trick to identify
what is off-duty misconduct, whatís protected activity.
Weíre looking for a line. Where does this line exist? I always think about a client
that I had. When we went from old vacation and sick leave policy to a personal time-off
system, we had a lot of discussion on how that was going to apply. We explained it was
a single time-off plan. It was super grade. It was flexible for employees who would just
absolutely love it.
We put it into place and because the employer was a public employee, the first thing we
did is we started developing forms and the first thing we put on the form is, ìWhatís
the reason for your absence?î Well one of the first responses we got back was an employee
that put down, ìNone of your beeswax.î
I love that. That got to be one of my credos in life. What weíre talking about today is,
ìIs something of legitimate concern to the city or is it none of your beeswax?î Is that
a nice, bright line? Well, no itís not. If it was, the webinar would be six minutes long
and I would not be able to buy the boat that Iím looking at by charging clients who are
dealing with off-duty behavior.
One of the great lines in the PowerPoint materials we put together ñ actually my law firm put
together indicated that ñ I got to quote this from her. She said, ìThis area involves
a balance in a murky area of law with varying precedent.î
Now think about that. When you charge by the hour, it doesnít get any better than that
if youíre a lawyer. Truthfully, nice, bright lines tend to be pretty blurry when we start
talking about lawyers are in the room.
Again, my favorite line when we talk about whatís the clear-cut answer. Whatís the
bright line? It came out of a frustrated United States Supreme Court Judge Potter Stewart
back in 1964 and they were arguing about what was hardcore pornography and he listened to
all the arguments. It was pretty evident that he was struggling to come up with the definition
and what he wrote ñ and hereís the bright line that we got.
ìI shall not today attempt further to define the kinds of material I understand to be embraced
within that shorthand description of hardcore pornography and perhaps I could never succeed
intelligently doing so. But I know it when I see it.î
Wikipedia talks about that phrase is a speaker attempting to categorize an observable event
or fact although the category is subjective or lacks clearly-defined parameters and itís
actually a pretty good description of what weíre doing here with our off-duty misconduct.
So there often is not a clear-cut answer. That gives us an hour of webinar on it.
So when we start talking about what is off-duty misconduct, nine years ago, there was a Berkeley
law professor, Stephen Sugarman. He wrote a really interesting article detailing examples
of where employers in both the public sector and the private sector disciplined or terminated
employees for behavior that plays off the work site.
Some of these examples are really interesting and I would thank the League for putting in
little symbols on the side that really make this an enhanced presentation.
University of Alabama fired this new football coach after he was reported that he partied
with strippers when he was in Florida for a golf tournament. That would get you fired.
San Francisco Chronicle dismissed the technology reporter after he was arrested while protesting
the war in Iraq on his free time.
A Lockheed employee claimed he was punished by his employer because of jokes he pulled
at a private retirement party honoring a fellow co-worker.
Chicago Tribune forced a resignation of this nationally-known columnist Bob Green after
it was disclosed he had a sexual relationship with a young woman he had earlier featured
in a column.
The dean of students at a Catholic high school was forced to resign after his name and photo
were found on sexually suggestive websites related to homosexuality, motorcycles and
TBS adopted a policy of hiring only non-smokers. Commercial airlines suspended pilots who smoked
marijuana on their days off.
Walmart fired two sales associates who violated the firmís ban on dating between employees
who work in the same store.
Coors Brewing offered economic incentives if you pledged to wear seatbelts whenever
you drive. The Air Force brought court marshal proceedings against officers who committed
adultery. Professional sports leagues discipline people, players and owners for gambling and
for violating ñ associating with gamblers. And the marines briefly announced that they
only wanted recruits who were single.
Remember that was nine years. Not much has changed in those nine years. Itís a pretty
interesting list when we talk about that laundry list. I donít know if we have the technology
but raise your hand at home if you agree with every single one of those issues as a statement
of an instance where somebody should get in trouble.
OK. Some of you are raising your hands. Not everybody. So weíre going off with the premise
that not everybody agrees with everything in that list.
In the nine years since, weíve come up with some new stuff.
We got the University of Arkansas. Again, weíre talking about football coaches. This
is Bobby Petrino. He didnít disclose an inappropriate relationship with a female employee as national
polls hotly debated which one of his mistresses was most attractive.
In this instance, Bobby actually had gotten in trouble. He had a motorcycle accident and
one of the individuals that he didnít disclose was on the back of the motorcycle. Maybe he
forgot she was back there. They found out that was one of his mistresses and then they
found out he had another extra mistress and she just happened to be on the payroll. So
will that get you in trouble? University of Arkansas says it does.
Jerry Sandusky of course has got the famous conviction of sexual assaults while associated
with the Penn State football team.
In 2012, the Putnam County Sheriffís Department instituted the policy that says, ìEmployees
of Putnam County Sheriffís Department are not allowed to date or marry one another.
In the event employees wish to date one another, one of the parties must abandon his/her employment
with the Putnam County Sheriffís Department.î
That sounds like a sheriff thatís frustrated because he canít find Bo or Luke Duke whenever
he wants to.
When we talk about governing off-duty misconduct, the issue gets to be what, where do we regulate
this conduct. So weíre talking about where. Where do you do it? You can regulate it in
an employment contract. Thereís much less of a distinction in the public and private
sector by the way when you start talking about employment contracts.
So if youíre operating under a written employment agreement, youíve got an opportunity to put
in regulations, standards, requirements related to off-duty conduct.
They often state things like moral turpitude is prohibited. Whenever that pops up, I always
have to look up and see what moral turpitude is. It really means the gravity.
In this instance, whether youíve got off-duty conduct, itís within the realm of potential
discipline. That simply gets negotiated. In a public sector, obviously in exchange for
the meager salary and the abuse that youíre certain to take once you get appointed, we
would like you to promise to always be good. This is your labor contract negotiations.
OK, great. You agree to this, weíre going to put in all kinds of off-duty conduct that
you canít do and sign here and the person signs and we say, ìOK, weíre going to take
you away and take a small, brain sample,î so they move on. So here you got a contract
that applies.
Bobby Petrinoís case actually had one of those clauses in it. The contract says that
the university had the right to suspend or fire the coach for conduct that negatively
or adversely affected the reputation of the universityís athletic programs in any way.
So thatís the contract clause. You want to put that in yours. If youíre an employer,
well, then if anybody gets in a motorcycle accident with one of their two mistresses
and lies about it, then you can fire them too.
Beyond the employment contracts, we can also talk about off-duty conduct that is simply
beyond the pale. One of the examples that I put in the program is we talked about an
employment agreement stating that a violation of a criminal law or a conviction of a felony
involving honesty, death, morals or drugs is grounds for dismissal.
When we start talking about convictions, obviously that gets to be pretty farther down the road
than most employers. They want to get rid of somebody before you get to the conviction
but we do have some issues related to that in Minnesota that we will talk about a little
So we talk about contracts as a place where you can regulate off-duty conduct and as practical
matter, employment contracts of Minnesota cities, they tend to be limited to the big
hitters, the city managers, the administrators, the high level department heads. They donít
apply to the lower level schlubs like the city attorney.
When we talk about another area where we can govern off-duty conduct, we look at union
contracts. Union contracts can provide the grounds for regulating employeeís off-duty
conduct. The typical language of public employment contract prohibits discipline unless just
cause for such discipline exists.
Union contracts can also expand on that and talk about specific examples of misconduct
leading to discipline. So if youíve got a union contract, for better or worse, thatís
a source of where you can discipline. When youíre talking about disciplining for off-duty
conduct, union contracts, that probably are the union employees, are where you have to
find the basis for any action that should be taken.
So weíve got employment contracts. Weíve got union contracts. Most often when we talk
about off-duty conduct being regulated, we talk about them being contained in the cityís
policies. The cityís policies apply to non-union employees. Union employees may also have the
cityís policies apply to them if the policies supplement the union contract.
I also would note as a city attorney I have included in terms of conduct elected officials
including city council members, mayors in our policies, in that the mayors and the council
members voluntarily agree to be governed by that off-duty conduct. I know weíre talking
about employees today but that is also an area where you can broaden it out.
Basically if youíve got a city policy, you got a union contract, you got a written contract.
The difficulty you have is writing down all of the things that are prohibited and that
employees can get in trouble for.
Anybody that thinks that they can write down every single thing that employee can get in
trouble for, seriously underestimates the ability of employees to get in trouble for
things that they should get in trouble for but you didnít remember to write it down.
I guess the example I would give you in this is we all know life has really been regulated
and explained by Seinfeld. One of the great episodes in Seinfeld involved George Costanza
and George Costanza actually got in trouble for sleeping with the cleaning lady at night
at work and of course his boss found out about it and brought him in to ñ I canít remember
if it was a termination or a lower level of discipline. I think it was a termination.
And he told George, ìThis is the problem and this is what weíre going to do to you,î
and George says, ìWell, if I have known you couldnít do that, I certainly wouldnít have
done it. Thanks for explaining to me. I wonít do it again.î But truthfully, if I had known
was that wrong ñ it actually gets to be one of those Seinfeld lines that you hear from
here to eternity.
So you can define it. You can add every single thing that you can think of and the employee
is much more creative than you are as a drafter and they will find something thatís not written
on there that clearly is offensive and still want to discipline him for.
So it gets to be a trick when you write where you can discipline. You can write what is
prohibited but you still need to have additional flexibility when you talk about what is misconduct.
Basically when we talk about the limitations on conduct that you can regulate, we talk
about the common use of a just clause standard or similar misconduct standard in veteranís
preference. This obviously involves considerable leeway interpretation via an outside arbitrator.
This gets us really back to our Supreme Court Justice Potter Stewart in this frustration
with trying to figure out what pornography was and he said, ìI know it when I see it.î
Well basically, when we talk about ìI know it when I see itî in the public sector, in
the unions, weíre talking about just clause. Basically just clause is whatever the supreme
decider thinks is bad enough to get you in trouble.
Whoís the supreme decider? Well, my initial theory when we started talking about who should
decide what is just cause, after I found out that thereís all kinds of standards applying,
is that, ìIf I had to pick somebody who would decide what just cause gets you in trouble,
who do you pick?î Well obviously you pick your mom.
If we could have employees hired along with their mom, I think we would have absolutely
no problem with applying just cause standard.
You observe the conduct. Youíre the mom. The punishment is quick. It is just. Playing
Angry Birds instead of filling out your WH-382 form, your mom is going to say, ìI taught
you better than that. What are you doing?î Smack side of the head. Iím going to tell
your father when he gets home.
The problem weíve got with this as a standard is moms by and large donít want to spend
any time with their kids and certainly wonít go to work with them. The other problem weíve
got is what you have if you have a mom that has more than one kid. Actually, I run this
past my mom and she said, ìWell, thatís easy. The mom always knows which kid you have
to go to work with and which one can go by themselves.
Since we canít use moms in this area, when we talk about who decides just cause, weíve
got this supreme decider that we call an arbitrator or a panel. Itís an outside neutral. They
are the person that decides what is the stuff that will get you in trouble. I always tell
people that ñ and they laugh when I say cases might get decided what an arbitrator had for
breakfast, whether they stubbed their toe on the way to the door or whether they had
a fight with their significant other on the way out the door or right before the ruling.
They laughed. Iím not kidding, honest to goodness. I canít remember which arbitrator
it is for example but theyíve noted that theyíre not particularly offended by pornography.
So if itís a public employer, youíve got a case that involves that specific conduct
and you got an arbitrator that is not bothered by whatsoever. Well, then guess what. Just
cause does not decide the case or just cause is not going to uphold discipline or discharge
in that case because your arbitrator doesnít view this as simply that bad.
So just cause. When you talk about just cause, in an effort to make not just whatever anybody
wants it to be or that their mood takes them to, we tend to use some factors that determine
what is just cause and basically these are cases ñ this comes out of this famous arbitration
case called Enterprise Wheel by Carol Doherty and actually I like this because it actually
takes something that is as subjective and ambiguous as you possibly can and apply some
standards to it.
So what is just cause? Well number one is, ìDid the employer give the employee forewarning
or foreknowledge of a possible or probably disciplinary conduct?î An alternative is,
ìIs it still obvious that he should already know it?î
This is the George Costanza rule. This is the one where George leaped on and said, ìHey,
I didnít know this was a bad idea.î So thatís the first one. When we talk about just cause,
you got to meet that. Actually weíve got to meet all of these.
Number two. Was the employerís rule or managerial order reasonably related to the orderly, efficient
and safe operations in the employerís business and the performance that the employer might
properly expect of the employee?
Remember those two standards because weíre going to talk about them a little more in
Three, did the employer before administering discipline to an employee make an effort to
discover whether the employee did the deed?
And four, was the employerís investigation conducted fairly and objectively?
Five, at the investigation, did the final decision maker obtain substantial evidence
or prove that the person was guilty as charged?
Six, has this been applied in an evenhanded and non discriminatory fashion to all employees?
And then seven, was the degree of discipline administered by the employer in a particular
case reasonably related to how serious it was and then the employeeís record?
So those are the seven standards, the seven factors that you apply to figure out if just
cause for discipline exists. In this instance, when weíre talking about off-duty misconduct,
the focus is really on factor one, whether there was a rule in place and factor two,
ìWas the rule reasonably related to the orderly efficient and safe operation of the employerís
business and the performance that the employer might properly expect of the employee?î
So we take a look at these two factors when weíre talking about off-duty misconduct.
Typically the first thing weíre talking about when weíre looking at off-duty misconduct
that we want to regulate is whether we can establish as an employer the connection between
the conduct and the potential or actual damage to the companyís reputation and problems
within a relationship with the other employees at work.
Whatís the connection that weíve got? The National Academy of Arbitrators test, they
give us a four-pronged test that requires employers establish only one of the following.
One, it has got to be this misconduct involves harm or threats to supervisors, co-workers,
customers, or others with an actual or potential business relationship with the employer.
The misconduct could seriously damage an employerís public image.
The misconduct reasonable makes it difficult or impossible for co-workers, customers or
others with an actual or potential business relationship with the employer to deal with
the employee or finally, the employee makes off-duty public attacks on employer, supervisors
or the employerís product.
I would note that when we talk about this four-pronged test, this is a test that Christine
Ver Ploeg put together in a William Mitchell Law Review.
For those of you that do a fair amount of this work in the public sector of Minnesota,
Professor Ver Ploeg is one of our existing arbitrators and employers tend to use her
a great deal if given the opportunity.
So if you have Chris whoís one of your arbitrators and youíve got an off-duty conduct case,
sheís just giving you a road map of what you need to prove.
Besides Chrisís test or the National Academy of Arbitrators test, we got an alternate four-pronged
test. It is actually pretty much the same but itís worded a little differently.
In my world truthfully, I take a look at my case that Iím trying to put together and
whichever test fits my case, I use that one. So thatís high level, legal thinking on my
So number one is the behavior harms the employerís reputation or product. Now I just say this
is a highly subjective test. The extent the conduct is reported in the press, the grievant
is identified as an employee of the city, the case for discipline or discharge is really
strengthened particularly if a serious crime is involved.
So we talked about the cityís reputation or product and then of course we can just
debate as to what the cityís reputation or product is on the first place. So we tend
to not use that prong as much as we can in arbitration because then we start talking
about what the cityís reputation anyway.
The second one is the behavior renders an employee unable to perform his or her duties
or appear at work. If the conduct is closely related to the grievantís responsibilities,
a nexus exists. Nexus means the hook that weíre looking for.
The conduct example they give here is dismissal of a security guard is appropriate for off-duty
theft. Good idea. Off-duty conduct has to affect the work performance.
In this instance, I always ñ my classic example in this is simply ñ it happens to me periodically
ñ not to me personally but clients throughout the course of the year. You get employees
who get chucked in the clink and if you get chucked in the clink and you canít go to
work, well guess what. Theyíre pretty hard to perform his or her duties or appear at
Now some of them think that doesnít really affect your job performance that much. I can
take care of a big ñ Iíve got a dime here I can take care of some of my work stuff.
But typically if they donít appear, that is AWOL.
Number three, the behavior leads to refusal, reluctance, or inability of other employees
to work with him or her. This is a prong in this test that Iíve got a little bit of heartburn
trying to apply because one of the things we always have to be careful of when we talk
about treatment by other employees is whether the other employees are acting against this
employee for discriminatory or an inappropriate purpose.
So if theyíre picking on an employee because of productive status, we better not be as
a city applying this particular standard.
So you can document objections of co-workers to persuade the arbitrator to discharge the
employee. Actually thatís good to do because one of the things if youíre a union rep and
youíre trying one of these cases, you want to bring in all the employees to say, ìThis
co-worker does not need to be discharged because theyíre great.î
So from the perspective of a discharge case, if you can get the co-workers to say, ìWe
donít support this person or thatís not how we do things.î If the grievantís reinstatement
poses a threat to the safety of other workers, discharge will likely be supported if you
get the right arbitrator. We always have to have that and they have something for breakfast
that didnít irritate them.
Finally the alternate four-pronged test that weíre talking about on this alternate test
is the off-duty conduct undermines the ability of the employer to direct the work force.
And basically we donít have any examples listed in this but itís one where simply
if you bring them back, itís all chaos and we canít get anything done.
So when we start talking about these prongs, thatís basically the general standards that
we have to establish. What we then have to take a look at is we also have to look on
the significant limitations that weíve got simply on regulating off-duty conduct.
When we talk about regulating off-duty conduct at the city level, the first thing we should
be looking at is first amendment protection. Itís listed right away in the amendments
of the constitution and freedom of speech is the first thing that pops out of anybodyís
mouth in the city when you want to take action against them for something that theyíve said.
And actually the first case ñ I didnít put it in our materials but I think I would like
to at least make a note of it. When we talk about the first amendment cases involved in
public employees and their freedom of speech, thereís a case called Garcetti against Ceballos
from 2006 and itís the United States Supreme Court case. And basically in that case, he
was an assistant district attorney I believe and he found out about a search warrant affidavit
within his office and he did his own personal investigation out even though it wasnít his
case and came up with some serious objections and concerns about the validity of the affidavit
that supported the search warrant. He griped about it internally. They told him to go away
and go back and work on his own cases.
Well as a matter of course and you can probably guess, he winds up testifying from the defense
in the case. So if the assistant district attorney is testifying for the defense, that
doesnít make his boss all that pleased.
And the employee then says, ìHey, youíre starting to take action against me because
of this action,î and his action is protected free speech. It goes to the United States
Supreme Court. The United States Supreme Court says, ìI will tell you what. If itís within
the course of your duties as a public employee, then itís simply not covered by the first
amendment.î So if youíre doing your duty, even if itís badly done, if itís within
the scope and course of your duty, itís not first amendment. You donít worry about that.
So that tends to be the seminal opinion when we talk about whatís the first amendment
protectionís affordance on public employees. But because weíre talking about off-duty
conduct, we typically donít have that as a concern. But note, out of that case that
not all first amendment protection automatically attaches to everything that public employees
When we look at an off-duty conduct, we have to balance the employeeís rights to freedom
of expression on matters of public concern Ö
Ö the employerís interest and promoting efficiency of public services.
Thatís the balance. Itís the balancing test. Again, little more gray area. The balance
is in favor of constitutional protection except when employer shows that some restriction
is necessary to prevent the disruption of official functions or to ensure effective
performance of the employee.
So youíre taking a balancing test. Youíre not getting a bright line out of this but
basically when weíre looking at the conduct, weíre also looking at content, contacts,
time, manner and place of employeeís expressions. Conduct that rises the level of misconduct
maybe just cause for termination but never for termination of the right to free speech.
You can say whatever you want. You just canít say whatever you want and work here. Thatís
the buzzword on our lessons from the first amendment.
So the real reason Iím sure everybody checked in today was talk about limitations on regulating
off-duty conduct in social media. Social media is one of the great things that have developed
for both people who like to spend their entire lives on computers and lawyers.
Social media, I gave this speech quite frankly back in 2008 and looking back, it was pre-social
media. I think of that as the golden age of employee discipline. Now that weíve got social
media, weíve got this whole new area of off-duty conduct that we have to worry about and my
general response when people would call and say, ìWhatís the standards that apply to
off-duty conduct and social media?î my response has always been, ìWell, I will tell you what,
itís the exact same conduct that you can either regulate or not regulate if itís face
to face or if itís done by a spoken word.î And I thought that was pretty smart in just
giving that glib, short answer and it doesnít require a lot of research and I can go do
something else.
But as I discovered, life develops and social media is an area where people write things,
create records of things. Youíre able to prove things existing that you never can establish
when weíre talking about the spoken word or the conversation.
So it creates a record but more significantly what it does is social media has established
ñ in my experience anyway ñ a forum for people to put things down that they would
never tell anyone else. It is the most amazing phenomenon that Iíve ever seen in my life.
I tend that I donít ñ Facebook, I donít understand any of that stuff except to the
extent that it gets posted and I get my hands on it for purposes of misconduct cases.
Really I think that the general standard of social media occurred. Bill Belichick. If
youíre a football fan, Bill Belichick is the head coach of the New England Patriots.
Bill is viewed as something of an old school, nasty extremist and they told Bill that his
players were tweeting and he said, ìWell, whatís that?î And they said well ñ and
they explained to him what tweeting was and Bill decided, well, he didnít like that at
all because then theyíre letting out secrets.
He said, ìOK. Iím going to address the team on social media.î He came in. He gathered
the entire team in an auditorium. He came up in front and said, ìHereís my policy
on social media. I donít want any of you on MySpace or Facebook and thatís all I got
to say,î and he walked away.
So nobody on the New England Patriots is on MySpace or Facebook. When we start talking
about social media, obviously employers would like to say, ìStay off that stuff.î Unfortunately,
thatís not really practical and doesnít occur and in instances where it involves protected
conduct, you canít keep employees off of social media.
So when we talk about social media, weíre talking about something that we recognize
is existing. Weíve got to move on. Weíve got to live with it. So the question gets
to be, ìHow do we regulate and can we regulate anything that occurs within the social media
Typically when we talk about social media, the people that are taking a look at this
now is the National Labor Relations Act. Theyíre the folks that are in charge of the private
sector labor laws and I view it as kind of funny because the National Labor Relations
Board, theyíre kind of a World War 2 group. They interpret language from World War 2.
They go back to the 30s.
They are struggling with social media and itís funny. I think theyíre now on their
third or their fourth General Counsel memo on how to deal with social media and expression
of rights under the federal labor laws and so theyíre on three or four ñ Iím starting
to view their memos that are coming out about as frequently as you get those emails on people
with Walmart. So theyíre going to just keep coming out because people are going to keep
coming up with social media concepts that are going to get them in trouble and then
weíre going to have to figure out if itís OK or not.
Because weíre talking about cities in our webinar today, weíre not specifically subject
to the National Labor Relations Act or its interpretations. The one thing that has happened
though because our state labor law applicable to cities really does utilize the NLRA as
the model for a lot of its language, weíre talking about an instance where the laws as
theyíre stated are pretty much the same.
So when we talk about whatís regulated in the state for cities, I think we need to keep
track of what the National Labor Relations Board is saying when we talk about what could
be social media thatís regulated.
So when we talk about it, we talk about Section 7 of the National Labor Relations Act, the
right to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
Weíve got a similar provision in our state laws. So that basically gets to be the starting
point when we look at whatís OK to regulate within social media. Concerted activity is
what is regulated. Itís not individual activity. It has got to be concerted activity and action
by individuals engaged with the authority of other employees or action by a single employee
trying to enlist support of fellow employees by initiating or inducing action.
It does not include individual gripes and even acts that are concerted that are outrageously
disgraceful and may lose their protection.
So weíre looking at ñ like we look at in the real world. Is the conduct something that
is being done as a collective action? Is it being done with further terms and conditions
of employment? If itís simply just an individual beef, it does not have protection.
We get some mutual aid and protection. Again the post has to be about a mandatory subject
of bargaining. The post may need to be about creating change.
The General Counsel, like I said, is struggling with this concept a little bit. Theyíve got
a two-step review. One, the rule clearly unlawfully ñ the rule that the probation by the employer
is clearly unlawful if it explicitly restricts Section 7 protected activity.
If it does not specifically restrict it, thereís only a violation of the different section
if employees would reasonably construe the language to prohibit Section 7 activity.
So when you look about that, the rule has to be promulgated in response to union activity.
If we create it, then weíre in trouble. The rules then apply to restrict the exercise
of Section 7 rights.
This is what the NLRB has told us. Itís a lot of gobbledygook. Truthfully what the NLRB
has told us is decent language. When we put together a social media policy that prohibits
some social media, we want to put in language that says ñ and write this down quick. It
says the employer is not seeking to restrict Section 7 rights and if you want to provide
definitions, examples, or other specific guidance, you can do that.
So the little blurb that weíre all telling all the lawyers out here doing this, are telling
all of our clients. If youíre going to be putting together a social media policy, number
one, let us look at it before you put it into place.
It is something that you want to have prior review before itís in the world. Once it
gives them the world, then weíre in trouble. We want to have this disclaimer that says
we or this policy are not trying to restrict our Section 7 National Labor Relations Act
protected activities.
Remember with our personnel policies, we always put in language that says this is not intended
to create a contract. This is our new buzzword on social media policies. So there are our
examples for the day.
This is an interesting state because weíve got a law that says the Minnesota public sector
labor law does not prohibit a collective bargain agreement from including provisions related
to workplace communications.
You look at that and say, ìWell, what the heck does that mean?î Workplace communications
are any printed or electronic document and itís pertaining to union business or organizing
as provided under state law.
When they drafted this language, they pretty clearly wanted this to be a union, an employee
protection. But if you take a look at the law, it appears to allow cities to regulate
such conduct through negotiating restrictions and prohibitions into collective bargaining
The only problem in doing that is you need to find a collective bargaining partner thatís
dumb enough to answer into that if youíre the city.
So we talked about limitations on regulating off-duty conduct. The one that absolutely
drives cities batty is that we have a law, Minnesota Statute Section 364, that prohibits
cities from taking action against an individual who is charged with a crime where there is
no valid conviction.
So you get arrested. Thatís not enough to simply bounce somebody out. You canít act
on a criminal conviction that has been annulled or expunged. You canít take action if itís
a misdemeanor for which no jail time can be imposed and basically we talk about convictions
in this area. Convictions take a long time to get to.
Particularly when we start talking about DUIs and the application of our DUI laws to off-duty
employees regardless of when the action occurs. They get pulled over for a DUI. It takes months
and months, sometimes years now that weíve got a big, criminal controversy about our
source code violations. It might be a year or two before there is actually a conviction
resulting from a DUI.
This law, this 364 is very frustrating when we start talking about the extent to which
we can regulate off-duty conduct. That is an arrest but not a conviction. And remember
out of this, we also have to talk about convictions of misdemeanors for which no jail time can
be imposed.
It gets to be one where they basically put a floor on prohibiting actionable, disciplinary
action and even if you get to the conviction stage, the same law, Minnesota Statute Section
364, deals with employment and convictions. So even if youíve got a valid offender that
gets convicted, take a look at this law before you take any actions against this individual.
What I will tell you when we start dealing with criminal activity is A, it gets to be
a real complex area. Always include your city attorney, your labor counsel if youíve got
one right off the bat on these things because A, itís going to be a high profile thing,
maybe. So youíre going to need to deal with the PR aspects of it and data practices aspects
of it.
Then you also need to dive right into when and where can you start doing your own investigation
for this off-duty conduct. In criminal matters, typically, you will have an instance where
the criminal investigation is occurring and the criminal investigation or the investigators
may not want you to participate or do your own investigation because itís going to ìscrew
upî their investigation and they want you to keep your hands off.
So timing on this gets to be real complex. Again what I would tell you to do is if you
got criminal activity, you got an arrest, you got charges, call your lawyer right off
the bat.
The other one ñ and I take this all the way back to the Putnam County Sheriff and his
frustration with employee dating. Thereís a law in Minnesota, human rights law that
says that you canít discriminate against someone based on their marital status. And
marital status is not only marriage but is in a relationship but not married.
So employer regulation might lead to human rights claims when we start talking about
relationship between employees. Truthfully, I donít talk about how far back in the world
I go but my first Court of Appeals case ñ actually it might have been my ñ that was
my first case.
My first Court of Appeals case, I represented a county down on the southern border and it
was a human rights claim and it was based on the fact that I had a young lady who was
an admirable performing secretary and she worked for the Cedar Program, if I can go
that far back with some people. And she had announced to her supervisor and the very nice
lady that she was pregnant and was thinking of getting married to her boyfriend or long
time boyfriend who was the father.
And the supervisor who told me, she said it because of her strong religious beliefs, told
the lady, ìWhy would he marry you now if he didnít before?î And obviously when the
Cedar program ended, I believe he didnít get promoted into an open job. She filed a
claim for marital status discrimination. That got to be the smoking gun in the case. As
soon as the judge heard that, I knew we were in a little bit of trouble but we wound up
with a claim based on marital status.
My knowledge [0:45:00] [Indiscernible] marital status reported case. So remember, you canít
discriminate against somebody based on marital status and that doesnít only include marriage.
Thereís a reason ñ I say reason. Thatís a year old now, 2011. Thereís no need to
specifically allege a direct attack on the institution of marriage for marital status
discrimination cases.
What Iím trying to tell you by this is the Putnam Country Sheriff would be extremely
disturbed to be in Minnesota and run into these limitations that heís trying to regulate
in his area.
So from our perspective, weíve probably got more limitations than Tennessee. So we will
move on from there. But one thing I would tell you, if youíre a private sector employer
and youíre sneaking in and listening here, thereís a statutory prohibition on regulating
lawful, non-work activity and Iíve got the statutory site 181.938 that says you can basically
smoke and drink off site and party to your heartís content and post it on Facebook and
just have fun in general. Well, that does not apply to Minnesota City.
So again, private sector employees can have a lot more fun than public sector employees.
So, donít worry about that if youíre in the cities and what we tell you is go to town.
It doesnít apply to you.
Now we get to the arbitration rulings. One of the things we promised you is a list of
what you can and canít do and we still donít have our technology fixed in here. I canít
see the people at home but the group that Iíve got off site here, I would like you
ñ when we start talking about these disciplinary actions, if it has affected you as an HR professional
and has been in your city and it happens, I would like you to raise your hand if this
has affected you. And actually Iím going to tell you how I came about this.
I grew up ñ I am Catholic. My parents went off to our very first thing called a communal
confessional and now you go to confession back in the old school, back in the 60s. You
would go in a little room and you tell a priest everything you did and then the priest would
chuckle and then he would tell you what was going to happen to you.
But they adopted a new thing called communal confession and basically itís a mass and
my folks, my mom and dad went off to one of these and I didnít go for some reason. They
came back and I said, ìHey, how did that work?î My dad said, ìWell, it actually is
pretty efficient. The priest goes up there and we have a mass.î And he said, ìBut then
we get to the halftime speech and then the priest goes through a list of all of the sins
and if you committed that sin, you got to raise your hand. And if you did it more than
once, you got to hold up the number of fingers youíve done it wrong.î
So what I would like my offsite group to do in the next room, if youíre involved in this,
I would like you to raise your hand and if it has happened to your city more than once,
raise the number of fingers that it has occurred. If youíve done it yourself, raise your left
hand. So we will have a discussion on this afterwards
So weíve got some examples where discipline for off-duty conduct is upheld.
Number one, termination for placing a private part in a fellow employeeís hand during off-duty
birthday celebration at the local bowling alley. Yes, this was my case.
OK. I donít know if we should just leave that as itís stated. One of the things I
will tell you though at that bowling alley, there are some allegations that the employee
prior to this had been betting ñ I think it might have been a brother-in-law. Donít
quote me on that but they were playing dice and I think if you lost, you had to drop your
pants and then go up to the bar and buy a round.
So I think this led up to ñ there was some fun activity before we even got to this point.
The arbitrator, Steve Befort, and take a look at the arbitrators that uphold these because
when we start talking about dealing with discipline, the arbitratorís views on these get to be
pretty interesting.
So if you do this particular activity during an off-duty birthday celebration at the local
bowling alley, you may get fired. That same party, that same bowling alley, it was quite
a night, another employee got terminated for lying about the off-duty conduct noted above.
What this employee did is theyíre the ones that said, ìWell, you know what? I saw it.î
And then they changed their story after the termination started and I think the story
turned into ñ well I didnít quite see it or it might have been something else and they
got fired.
Another one, termination for off-duty DUI where the employee is required to have a CDL.
This is a City of Champlin case and what I will tell you unfortunately ñ and we canít
talk about ñ we only talk about Ö
Ö glorious victories where termination is upheld. The Bureau of Mediation Services does
not allow publication of awards where the employer has simply gotten a decision overturn.
So in this case, we will talk about Coon Rapids that had one that was not quite upheld as
a termination but we canít talk about that. So here you go. Terminations for off-duty
DUI kind of go on both ways. We had a termination reduced to 30 hours suspension for domestic
Again we can report about that because itís still ñ discipline was upheld. Veteranís
preference, we get a fair amount of these terminations. Now this is a misconduct standard
that winds up as the same as the just cause standard.
Conviction or possession of a controlled substance, failure to advice employer of a prior conviction,
that will get you fired.
Conviction of five charges involving breaking into an ex-girlfriendís apartment and failure
to notify the employer.
Off-duty use of cocaine. This case was actually very cool in terms of the cocaine use occurred
off-duty but it was at a garage where some people that owned a monster truck lived.
So that case is very memorable to me. Again, arbitrator Befort. Arbitrator Befort sometimes
cringes when our law firm hires him because he knows some of his facts are going to be
a little interesting.
Termination of a plumber for DUI and open bottle resulting in the employerís insurer
prohibiting veteran from driving the employerís vehicle. Thatís an interesting case.
Termination of a child mental health worker arrested for domestic assault and later a
DUI arrest. So with that, I went over by two minutes but I will gladly take any questions
that you might have.
Scott, we do have one here. Should we try to negotiate language into our union contract
about off-duty conduct? And if so, what should it say?
My recommendation when we start talking about off-duty conduct in union negotiations is
itís a lot better to simply approach it from the perspective of union. We really need to
have parameters that are covered outside of the union contract and letís put these into
personnel policies and we will give you advanced notice of what the changes of the personnel
policies are.
So if you negotiate it with the union, I would suggest you say, ìLetís deal with this as
a union agreeing to have our personnel policies apply,î and then the personnel policies will
detail what we do as off-duty misconduct or anything else that we can discipline for.
Obviously the union at that point always reserves the right to go back and say the union contract
says just cause and just cause is what weíre fighting about.
The personnel policies obviously get to be very important to us because when we go back
to our just cause test, itís number one. Itís George Costanza. Itís written down.
Itís what you canít do. So thatís my recommendation.
We have another one here. If one of our employees writes a letter to the editor of the local
newspaper criticizing the city, can we discipline him for that?
Thatís a pretty good question. Again, as city attorney, Iíve also been the subject
of some letters for the editors saying Iím not very good as a city attorney. I believe
my favorite one was questioning whether I was a citizen of the United States or if I
had ever read the first amendment.
So as the subject of letters for the editor, I would tell you the key in this really gets
to be if itís an employee that is simply signing their name as Suzy Smith from Andover
then theyíre speaking as a citizen and they tend to have first amendment rights.
By and large, we let roll off our backs. If they sign it as disgruntled city employee,
well then all of a sudden theyíve got the action. It gets analyzed a little closer and
if itís action that theyíre complaining about that occurs in the context of their
job, that gets us back to our disgruntled assistant district attorney and we maybe can
take disciplinary action against them.
And we have a social media question. What if we hear about an employee posting something
on Facebook that is critical of their supervisor? Can we discipline for that and how do we get
the evidence in a legal manner?
That is the hot question that weíve had since 2010 and basically when we talk about supervisor
ñ employees criticizing supervisors on social media, in my world anyway, the protected activity
flag goes up and I want to take a real hard look at what the actual post is and determine
whether itís something thatís going to be a concerted activity.
I will give you an example on this. Weíve got an employee that posts on social media.
Let me give an example of this, if I can ñ I never could find it.
The employee posts on their Facebook site and says, ìI think our employer stinks. Their
wages, their terms of condition and their supervisors are no darn good,î and they didnít
put ìdarnî in there and they ended by saying, ìOther employees, what do you think?î
Well, all of a sudden, youíre talking about collective action because theyíre inciting
the interaction but theyíre doing it through social media. Itís protected, collective
activity. One of the reporting cases thatís really an interesting one thatís not protected
is the employee is of course on Facebook while at work and they get reprimanded for not doing
And rather than actually go do what the supervisors reprimanded them for not doing, they employee
posts on their Facebook, ìI think the supervisor just absolutely stinks,î and blah, blah,
blah. Well thatís an individual right. At that point, you can take action against the
employee about engaging protected, concerted activity.
So itís one of those areas ñ like I said, the National Labor Relations for their General
Counsel is going to spend the rest of their natural lives writing opinion letters and
guidance on social media and theyíre never going to stay ahead of employeesí abilities
to creatively irritate their bosses.
Well thank you, Scott. Thatís all the time we have for questions. A recording of this
webinar will soon be available on the League website and we encourage you to check the