Minnesota Cities Magazine

Letter of the Law: You Aren't the Boss of Me (After Work)!

By Laura Kushner

Typesetting-style letters in natural colors spell Why does every child learn to say, “You aren’t the boss of me!” by age 2? Maybe it’s just in our nature as human beings to prefer not to be bossed around. Even people who accept the boss’ authority at work probably don’t feel like they should be accountable to their employer after hours. And, for the most part, they aren’t. But … sometimes they are.

As a manager or councilmember, you might be asking yourself, “Why would I ever care what city employees do after hours?” Good question! Most of the time, you should begin with the premise that what an employee does outside the workplace is no concern of the employer. When it does become the city’s concern is when there is a “nexus” or connection between the off-duty misconduct and the employee’s duties or relationship with the city.

To make this a little clearer, here are a few examples of off-duty behavior that might be of concern to the city as an employer.

People seated at a polished wood bar. Someone pours red wine into a wine glass.Example #1. Charlie is a maintenance worker for the city. One weekend, he attends his nephew’s wedding and drinks too much. He gets pulled over, fails the breath test, and loses his commercial driver’s license, which he needs to drive the city’s snowplow. Pretty clearly, there is a connection between the loss of his license and his job duties. The city might be able to discharge Charlie or suspend him without pay, assuming there is no personnel policy, union contract, or past practice to the contrary.

Example #2. Lucy is a paid on-call firefighter. It’s common knowledge that she is dating the fire chief. Should the city care about this? Maybe yes and maybe no. Does the fire chief supervise Lucy directly? Does the city have a policy about supervisors dating subordinates? Is there any evidence that Lucy has received preferential treatment at work? Regardless of the answers to these questions, the city should talk with the fire chief and make sure he understands the city’s sexual harassment policy. Also, the city may want to reassign Lucy to another supervisor. If there is no evidence of preferential treatment, no policy against dating, and the chief is clear on keeping the private relationship separate from the work relationship, that’s probably the extent of the city’s involvement.

Example #3. Linus is a police officer who has been seen smoking outside a local bar recently. The city has a very clear policy about smoking on the job, but nothing about off-duty smoking. The police chief is strongly against smoking and wants to tell Linus he has to quit smoking or lose his job. Can the chief do this? Probably not. He can encourage Linus to quit and even offer to pay for a smoking cessation program. However, requiring Linus to quit or lose his job is probably not enforceable.

Other possible factors
Here are some other things to consider before taking action against off-duty misconduct:

  • Popularity contests. It’s always easier to be upset with someone you don’t like. Get legal advice and make sure there really is a connection between the misconduct and the city.
  • Morality issues. Just because the employee’s conduct is something that you find to be morally wrong doesn’t mean that you can do anything about it as an employer if there’s no connection to the job.
  • Protected behavior. Could the employee’s behavior be a protected disability? Is the behavior protected by collective bargaining laws? Could it be a protected religious activity or a free speech issue? If it’s a protected activity, the city may have to show that city interests outweigh the employee’s rights.

Bottom line: the city is not the boss of the off-duty employee unless you can show a connection and make it stick. This is one of those situations where the city needs specialized legal advice.

Don’t act without it.

Laura Kushner is human resources director with the League of Minnesota Cities. Contact: lkushner@lmc.org or (651) 281-1203.

Read the September-October 2013 issue of Minnesota Cities magazine

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