When employers define workplace rules through employee handbooks and policy manuals there are some rules included which reach beyond the workplace and extend to conduct while employees are off the clock. My mind brings ambivalence to recommending these policies because, on the one hand, they are necessary to address egregious off the clock behavior, but like any other policy, they can be abused. There is little dispute that employers can define employee expectations while the employee is on the clock. What generates more discussion, is whether employers can hold employees accountable for their off the clock behavior and define the out of bounds off the clock behavior with sufficient precision to give employees fair notice of what the employer defines as unacceptable.
As to whether employers may utilize off the clock behavior in making on the clock determinations regarding an employee’s continuing employment, the answer is yes but extra care should be taken in exercising the choice to discipline employees under the auspices of these policies.
Generally, employees should be able to freely use their off the clock time without employer interference or employment consequences. But what if the Tribal Administrator is engaged in wild, embarrassing, crazy, obnoxious and stupid behavior most weekends and that behavior is undermining the reputation of the Tribe which she represents. Can the tribe help adjust her behavior and in the event there is not an adjustment, can the tribe find a new administrator?
Yes. But the caution is that not everyone agrees on the definition of what is wild, embarrassing, crazy, obnoxious and stupid behavior which may shine a poor light on the tribe. Moreover, since it is difficult to draft a definition which covers all of the creative ways employees engage in wild, embarrassing, crazy, obnoxious and stupid behavior, the personal conduct policy will inevitably include general language which will later be applied to specific allegations of employee poor choices. Therefore, for personal conduct policies which address off the clock behavior, strive to define out of bounds behavior, talk to your employees about your definition and unless the alleged behavior is way out of bounds, use education first and discipline second in adjusting an employee’s behavior compass.
Here is a sample policy which may, or may not, be specific enough.
Personal Conduct Policy
All persons employed by the ABC Tribe are required to avoid conduct which is detrimental to the integrity of and public confidence in the ABC Tribe. This requirement applies to employees, vendors, contractors, independent contractors, elected officials and appointed officials.
Standard of Conduct
While criminal activity is clearly outside the scope of permissible conduct, and persons who engage in criminal activity will be subject to discipline or other consequences (non-employees), the standard of conduct for persons employed by the Tribe is considerably higher. It is not enough simply to avoid being found guilty of a crime. Instead, as an employee of the Tribe, you are held to a higher standard and expected to conduct yourself in a way that is responsible and promotes the values which are consistent with the Tribe’s unique history, it’s traditions and customs.
Persons who fail to meet this standard of conduct are guilty of conduct detrimental and subject to discipline, even when the conduct does not result in the conviction of a crime. The Tribe prefers education and corrective action when those tools will be effective, but the Tribe recognizes that employee discipline may be necessary to meet its objectives. When discipline is the appropriate option, the Tribe may impose discipline in its sole discretion under the following circumstances:
1. When, in the Tribe’s sole discretion, discipline is consistent with the Tribe’s objectives;
2. Criminal offenses including, but not limited to, criminal offenses involving the use or threat of violence, domestic violence, theft and other property crimes, sex offenses, obstruction or resisting arrest, disorderly conduct or fraud.
3. Violent or threatening behavior between employees whether in or outside the workplace.
4. Conduct that imposes an inherent danger to the safety and well-being of another person.
5. Harassment or discrimination as defined by the Tribe’s policy on harassment and discrimination.
6. Conduct that undermines or puts at risk the integrity and reputation of the Tribe.
Evaluation, Counseling and Treatment
Apart from any disciplinary action, persons arrested, charged or otherwise appear to have engaged in conduct prohibited under this policy generally will be required to undergo a formal evaluation. Based on the results of that evaluation, the person may be encouraged to participate in an education program, counseling or other treatment deemed appropriate by the employer. The evaluation and any resulting counseling or treatment are designed to provide assistance and are not considered disciplined; however, the failure to comply with this portion of the policy shall itself constitutes a separate and independent basis for discipline.
Upon learning of conduct that may give rise to discipline, the tribe may initiate an investigation to include interviews and information gathering. The employee will be given an opportunity to address the conduct at issue.
Recommendation: Before an employer holds employees accountable for behavior the employer should work hard at clearly defining the workplace rules. That hard work in defining employer expectations comes in the form of handbooks, policy manuals, standard operating procedures, job descriptions, orientation, training and more training. If employers hold employees accountable for poor behavior choices made when off the clock, employers should work as hard in helping employees understand those standards. Educate first. Discipline second.