In recent months a number of incidents have surfaced where neighbors or passers-by have called police to report African Americans engaging in seemingly ordinary pursuits. Examples include calls to investigate a college student napping on a couch in her dorm, some friends grilling in a public park and an 8 year-old girl selling water bottles in front of her home.
In most such cases, the police arrived and successfully dialed back the conflict without further consequence (except perhaps for the infamy derived from having millions of people view the online videos online, publicly critique their behavior and bestow unflattering nicknames). Some of the callers, like the one known as “Permit Patty,” now look back and regret their decisions.
Would 1 To 1 Have Been Better Than 9-1-1?
In two such incidents, however, the people calling the police ended up losing their jobs even though the incidents in question occurred during non-working time and had nothing to do with their regular employment. In one case, a woman whom the internet has dubbed “Pool Patrol Paula” aggressively confronted an African American teenager whom she thought did not belong at the neighborhood swimming pool. After a video of the incident went viral, skincare products company Rodan + Fields announced that the woman was no longer affiliated with their enterprise.
In another swimming pool incident, a White man serving as the neighborhood pool chairman demanded to see identification verifying that an African American family using the pool were neighborhood residents. Within just a few days after this video was seen by more than 4 million viewers, “I.D. Adam” had lost his day job as well. In a message posted for all to see, his former employer announced that his behavior “does not reflect the core values of our Company, and the employee involved is no longer employed by the Company in any respect.”
Neither of these incidents took place in Minnesota, but what if they had? Can Minnesota employers fire such pool-side provocateurs or other cell phone crusaders if they conclude that such very public off-duty behavior reflects poorly upon their company? The answer in most cases is a very resounding “yes.”
Except in very specific circumstances (e.g. the use of lawfully consumable products which is protected by Minnesota statute) off duty conduct is not outside a private sector employer’s reach under either Federal or Minnesota law. Therefore, a Minnesota employer could lawfully conclude that an employee’s off-duty altercation, or any publicity that might arise from it, is a sufficient justification for termination.
Called Out By Their Employers
Certainly there are exceptions. For example, if the employee is covered by a collective bargaining agreement that permits discharge only for just cause, termination may be difficult to sustain. Most arbitrators will look to such factors as the likely absence of a relationship between the act and the work assignment, as well as the probable lack of notice that such behavior was prohibited, in finding that the termination was not for just cause.
A private agreement identifying conditions for termination would also be an exception for many of these same reasons.
Similarly, if the employee’s behavior related to a legitimate report of a violation of law, the employee might be able to claim protection under Minnesota’s whistleblower statute. However, such protection requires that the report be made in “good faith.” This will be difficult to prove in a situation where, as in all of these cases, the reporting individual fails to engage the object of their scorn in civil discussion or reasonable inquiry, electing instead to call the police on a child, a neighbor or just a group of people minding their own business.
Moreover, as we noted in our article So, Your Employee Was in Charlottesville Last Weekend, even if the accusers have the law on their side, it seems likely that a termination decision would still be justified if it is based on the employee’s behavior rather than upon the decision to report illegal behavior. An employee who unreasonably initiates a conflict, or who does so in a discriminatory or aggressive manner, is not going to be shielded as an innocent whistleblower.
Employees in the public sector have greater latitude in their off-duty behavior but even so, the right to engage in Free Speech probably would not protect an employee who initiated an inflammatory confrontation ala Pool Side Paula.
This article is not intended to condemn anyone for caring about what happens in their community. After all, we constantly are urged “If you see something, say something.” However, in this age of cellphone cameras and social media, an employee engaging in escalation and confrontation should know that the incident is likely to be recorded and posted online. If that happens, his or her employer will get to make the final call.