off duty conduct of an employee

mdodge · November 2011

Does anyone know if the state of NM law give the employer the ability to regulate the off-duty conduct of employees? This provision would allow the employer to terminate or disapline the employee that has been arrested in a high-profile incident, but has not been convicted.

Sharon McKnight SPHR · November 2011

I'm sorry that I can't be more helpful but I don't know of any law in NM that allows or prohibits an employer either way. I think you should consult with a qualified employment law attorney in NM for guidance.

Sharon

ACU Frank · December 2011

Has the arrest resulted in attendance issues? That might be one approach.

One other thing to think about, though... What would you do if the employee was fired and subsequently acquitted?

SpartanFan · December 2011

When you say "high profile incident", if it involved violent behavior, rape, assault or other crimes that would cause great concern for the safety and security of your employees, or to your business (i.e. embezlement), I would think that one appropriate option would be to suspend the individual pending the outcome of further legal proceedings and/or until you are made aware of the extent of the evidence against the employee. This would at least allow you to calm the concerns of fellow employees and customers and allow you to determine if the allegations themselves will be detrimental to your business operations. It is a sensitive area because you don't know the guilt or innocence of the employee and don't want to throw him/her to the wolves before it all gets sorted out, but I would think you do have a right to take reasonable steps to protect your staff and your business from any fallout from the alleged criminal activity. You could put the employee on unpaid suspension, and when the case is finally adjudicated, if found innocent or if the charges are dropped or reduced, reinstate with backpay - if guilty, terminate.

rweaver · December 2011

I'm not a NM labor law expert. But, arrests don't always indicate guilt. I would think the employee's ability to meet reasonable job expectations...being there to work...would be your key. That and the types of absences you have previously allowed. High profile shouldn't enter into your equation. You may allow the employee to used accrued leave, allow a leave without pay in accordance with your established policies, talk with the employee or the employee's representative to see when/if the employee may be released before trial. You do have options. AND, if you have a "just cause" policy or a labor agreement, you may not be able to terminate without a fight. I have personally met with employees incarcerated pre-trial and made decisions based on those discussions. Sometimes the employees "fessed up" and agreed that termination was our only option.

sonny · December 2011

I would like to know the nature of your business, the offense and the persons position in order to respond. As the others have said, there is a lot to be considered but I think more information would be helpful.

Edit. . what your policies say can also be helpful. We are public sector and have a some good rules on conduct etc. that have helped us often in these situations.

NaeNae55 · December 2011

I am not sure I agree with rweaver. If you are a child care facility and the employee has been arrested in a high profile child abuse case, then you have reason to, at a minimum, suspend them. Having the news report that this employee works for you could put you out of business faster than it is taking me to type this.

This is something you have to look at on a case by case basis. If you are considering suspending or terminating an employee because they are being charged in a high profile case, and not because they are failing to show up for work, then I strongly suggest you consult an attorney. This could be a disaster in the making.

off duty conduct of an employee

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