As anyone knows who has scanned the headlines lately, bad behavior abounds in all geographies and all walks of life; examples are prolific. The recently-published video of NFL star-running back Ray Rice beating his then-fiancée in a casino elevator begs the question: What should an employer do when it faces bad behavior by one of its employees? And, does it matter if the employee is off-the-clock?
Guidance for employers facing these situations will always be case-by-case and nuanced based on the individual facts of each circumstance. Employers are not routinely faced with situations where off-duty misconduct of an employee has a sufficient nexus to the workplace, triggering the need for an investigation. However, if it does, there are some general guidelines that employers should follow when conducting an investigation into a complaint or information related to misbehavior by an employee.
First, a prompt, thorough and unbiased investigation of any credible report of misbehavior is paramount. The importance of a reasonable investigation has been highlighted in the Ray Rice case where, based on TMZ’s easy apprehension of the video showing Ray Rice punching his then-fiancée, it appears that the Baltimore Ravens could also have freely obtained this definitive evidence of domestic violence. Correspondingly, the Ravens’ seeming indifference or ineptitude in obtaining the video in the months prior to its release by TMZ appears unreasonable in hindsight. And, while understanding that hindsight can be 20-20, it is the employer’s burden to conduct itself in such a way that its action will still demonstrate a reasoned, logical approach, even when viewed in hindsight.
In conducting an investigation, an employer should interview any employee who is identified in a report of misbehavior as well as any potential witnesses to the alleged misbehavior. During these interviews, an employer should explore whether documents or other evidence exist that would support or discredit the report. The employer should then take reasonable steps to obtain this evidence. For example, in the Ray Rice scenario, the casino was willing to provide TMZ a copy of the elevator surveillance video based on an informal request. No subpoena or other legal document or process was required. In this scenario, requesting the video is a reasonable investigation effort by the employer. The allegations were serious, the evidence was not burdensome to obtain, and it was likely to show (here by video recording) the actual events in question.
Second, document, document, document. Although the example used here is high-profile, this guideline applies to all reports of misbehavior. The employer should document: (1) the report; (2) its ensuing investigation; and (3) the results or action taken based on the investigation. Records should be tangible, whether in the form of written notes, witness statements, video or media evidence, or some other format. All documentation should clearly indicate the date, persons present, and author and should be maintained in a way consistent with the preservation of business records.
Third, an employer should take disciplinary action based upon violation of its rules, policies or procedures. Each incident should be assessed on its own facts; one size does not fit all. In assessing an appropriate response, an employer should look to other similar incidents and resulting disciplinary actions, if available. It should also consult its published mission, vision or values statements. The determination of proper disciplinary measures must be made after considering all factors related to the misconduct, including the employee’s position and job duties, the business impact and other relevant factors. The penalty should be proportionate to the offense.
Turning back to Rice, even prior to TMZ’s release of the full video surveillance footage of Rice knocking-out his then-fiancée and dragging her body from the casino elevator, certain individuals and groups had staunchly criticized what they considered a lenient two-game suspension received by Rice in July as discipline for his actions. The public reaction was not only the result of Rice’s acts of domestic violence, undisputedly deplorable, but due to Rice’s role as a public figure and sports’ icon in the largest sports league in the nation. In late-August, in the wake of the public’s outrage, Roger Goodell, NFL Commissioner, strengthened the NFL’s disciplinary policy for domestic violence committed by any of its employees, requiring a minimum six-game suspension for future first-offenses. Goodell, however, did not revisit Rice’s two-game suspension under that revised policy until TMZ’s video release. Within hours of the video’s release, Rice’s contract with the Ravens had been terminated and he was facing indefinite suspension from the NFL.
Rice’s conduct was undisputedly not part of his job duties nor conducted while on work hours or with work equipment. So, does the on-duty/ off-duty distinction make a difference? In short, it depends. Rice’s actions had a very clear public impact on his job, the Baltimore Ravens as his employer, and the NFL as supervising body. Domestic abuse of a spouse by an IT Help Desk associate at a large pharmaceutical company may not have similar job relevance.
The case-by-case analysis is ever-present in any investigation of employee misconduct. However, in any scenario, by (1) properly investigating alleged employee misconduct, (2) documenting its investigation, and (3) reasonably assessing and enacting proportionate disciplinary action, employers insulate themselves as much as possible from the harsh light of hindsight.
 Belson, Ken, A Punch Is Seen, and a Player Is Out, N.Y. Times (Sept. 8, 2014) available at http://www.nytimes.com/2014/09/09/sports/football/ray-rice-video-shows-punch-and-raises-new-questions-for-nfl.html
 Babb, Kent and Maske, Mark, Roger Goodell Under Fire for Handling of Ray Rice Domestic Violence Incident, Washington Post (Sept. 9, 2014) available at http://www.washingtonpost.com/sports/redskins/roger-goodell-under-fire-for-handling-of-ray-rice-domestic-violence-incident/2014/09/09/839670bc-3859-11e4-8601-97ba88884ffd_story.html.
- Labor & Employment Law
- Employee Benefits and Executive Compensation
- Employment Law
- Department of Labor
- Paycheck Protection Program
- Affordable Car Act
- Employer Policies
- Labor Law
- Reasonable Accommodation
- Americans with Disabilities Act
- Employer Handbook
- Employment Litigation
- National Labor Relations Act
- National Labor Relations Board
- Social Media
- Securities Law
- Federal Arbitration Act
- Workplace Accommodations
- Wage & Hour
- Title VII
- Sexual Harassment
- Employment Settlement Agreements
- Preventive Care Benefits
- Employer Rules
- Transgender Issues
- Health Savings Account
- SECURE Act
- Sexual Orientation Discrimination
- US Department of Labor Employee Benefits Security Administration
- Workplace Violence
- Sixth Circuit
- Fair Labor Standards Act
- Disability Discrimination
- Equal Employment Opportunity Commission
- Overtime Pay
- Representative Election Regulations
- Religion Discrimination
- Department of Justice
- Gender Identity Discrimination
- Posting Requirements
- Class Action Litigation
- Disability Law
- Family and Medical Leave Act
- Environmental Law
- Privacy Laws
- Older Workers' Benefit Protection Act (OWBPA)
- Healthcare Reform
- Electronically Stored Information
- Affirmative Action
- Equal Opportunity Clause
- Compensable Time
- Pregnancy Discrimination
- Security Screening
- Supreme Court
- Occupational Safety and Health Administration
- E-Discovery Case Law
- Electronic Data Discovery
- Unemployment Insurance Integrity Act
- American Medical Association
- Attendance Policy
- Return to Work
- Seniority Rights
- Equal Pay
- Fair Minimum Wage
- Federal Minimum Wage
- Genetic Information Discrimination
- Media Policy
- National Origin Discrimination
- Race Discrimination
- State Minimum Wage
- Wage Increase
- Disability Leave
- Social Media Content
- Employment Incentives
- HIRE Act
- Social Security Tax
- COVID-19 Related RIFs - Considerations for Employers
- Benefits Monthly Minute UPDATE: Hot-Off the (Electronic) Press! DOL Issues New E-Disclosure Rules
- Should Employers Use COVID-19 Antibody Tests?
- NEW COVID-19 Guidance For 125 Plans and HRA Premium Expense Reimbursement
- IRS Q&As Address Open Questions on CARES Act CRD and Loan Administration
- What Should Employers Do About Employees Who Refuse to Return to Work?
- Reopen Ohio Guidance for Employers
- COVID-19 and Trade Secrets
- Ongoing COVID-19 Issues for Employers to Consider
- DOL Releases FFCRA Rule