DON'T GO VIRAL: Donald Sterling, et al., and off-duty conduct

Employers and employees, take this Friday pop quiz on off-duty conduct!

First, if you have not already done so, listen to these audio recordings of Donald Sterling, owner of the LA Clippers (for now), arguing with his girlfriend "archivist" V. Stiviano.

Protests this week in Los Angeles against Donald Sterling.

Then take Part 1 of our quiz:

Do you agree with the decision to ban Donald Sterling for life from the NBA? 

 Yes, because he's a racist.

 No, because his privacy was violated, and the poor guy is 80 years old.

 I can see both sides of this issue. free polls 

Next, if you have not already done so, read about Brendan Eich and his $1,000 donation in 2008 to Proposition 8, which would have outlawed same-sex marriage in California.

A career-killing gesture?

Then take part 2 of our quiz:

Would you have forced Brendan Eich of Mozilla to step down because he made a donation in support of California's Proposition 8?

Yes, because anti-gay bigotry has no place in our society.

No, because this is America - he has a right to support whatever cause he chooses.

I am on the fence. free polls 

OK, now go here if you don't already know about Gurbaksh Chahal, former CEO of RadiumOne, who was fired after he was allegedly caught on video beating up his girlfriend. (He was initially charged with 45 felony counts, but after his girlfriend refused to cooperate with the police, and a judge threw out the video on Fourth Amendment grounds, he was allowed to plead guilty to two misdemeanors and will not do any time.)

Chahal with President Obama, in happier days.

Then take Part 3 of our quiz:

Would you have fired Gurbaksh Chahal of RadiumOne for alleged domestic violence?

Yes, the scumbag.

No, because the charges may have been bogus.

I am torn. free polls 

Ready for Part 4?

Your employee tells you that her co-worker is driving past her house, and sending sexts and voice mails, but always after hours. What do you say?

So sorry, but there is nothing we can do because it's after hours and away from the workplace.

Thank you for letting us know. We will investigate and take appropriate action.

I have no clue. free polls 

Whatever your opinion may be about Questions 1-3, you probably know that the correct answer to Question 4 is "Thank you for letting us know. We will investigate and take appropriate action." But I continue to get resistance when I suggest that employers still have "jurisdiction" over things that go on outside the workplace and after hours.

In harassment training, when I ask what people would do about an employee who is being "stalked" or bothered off-site and after hours, there are always some in the group who will say that the employer can't do anything about it. Ditto for violence, or threats, or discriminatory comments that are made "off-duty" but in the presence of co-workers.

And when I suggest that employees, and especially managers, should be very careful about what they say in a public or semi-public forum (for example, on Facebook), someone will always insist, "That's an invasion of privacy! What about my rights? That's nobody's business but mine!"

After the news week we've had, no one should have that misconception any more.

Employees, and especially managers, should know that, when emailing, posting, or tweeting, or having a love spat an argument with the "archivist," they should be judicious about what they say and avoid causing themselves to "go viral."

I've even cautioned against "analog" behavior, like going out to a bar or other public place and spouting off your politically incorrect views on race or sex, or telling ethnic jokes. You never know who may be sitting a few stools down from you. Or maybe the bartender is good friends with one of your employees. (Probably not a good idea to vent about your boss in this type of setting, either, for the same reason.)

Finally, we have Mr. Eich, who, as far as I know, never said anything. He made a $1,000 donation in support of Prop 8, as did a lot of people in the State of California in 2008. I'm not going to defend his "resignation under pressure" because I don't think employers should "pressure" private-sector employees to resign solely because of their political views. Yes, I know this isn't a First Amendment issue, but it's still troubling to me, as well as to some prominent advocates of same-sex marriage.

That having been said, I have long advised employees (and especially members of management) to be careful about expressing their views on certain sensitive political issues. LGBT rights and same-sex marriage is a big one now. Affirmative action is another. At one time, it was whether women should work outside the home when they had young children.

Everyone has the right to an opinion, but I have seen how discussion like this can be used against an employer in litigation. I once defended a lawsuit in which a female employee claimed sex and age discrimination after her job was eliminated. About the only evidence she offered in support of her claims was that once, on a business trip, her younger male boss had told her in casual conversation that he thought being a homemaker was a noble calling. The boss's wife stayed home full time and home-schooled their kids. The plaintiff was in her mid-40s and married, but with no children. Therefore (she claimed), her position was eliminated because she was an older woman who had put her professional career first.

And, in case you think you're safe because your views are "politically correct," don't. This stuff works both ways. Don't care for evangelical Christians? Be careful, because if you ever have to fire one, you'll get a claim of religious discrimination. Like to bash men, or white people? Have you ever heard of reverse discrimination?

What we say and do -- whether it's in the workplace or out -- can and will be used against us. We need to act accordingly.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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