Personal Actions Conflict With  Employer’s Interests: What to do?

A spokesman for NASA, Nowak’s employer, recently was quoted in media reports as saying, “We try not to concern ourselves with our employees’ personal lives.” The government agency’s regulations concerning employees’ behavior generally do not restrict romantic fraternization between coworkers. Last week, NASA terminated Nowak.

Personal Behavior ON the Job

An employee’s personal behavior on the job is more likely to damage the employer’s business interests than the employee’s behavior off the job. An egregious example of this happened just recently in Des Moines, IA. A clerical employee in a hotel spent months writing a lengthy personal journal on her employer’s computer during her paid “work” time. The 25-year-old employee lost her claim for unemployment benefits after her employer showed that she was fired because she spent most of her work time making entries in her personal journal on the company’s computer. In her journal she detailed the minute moments of her daily life. And her personal writing went on for months, with entries like this: “I am going to sit right here and play Elf Bowling or some other nonsense. Once lunch is over, I will come right back to writing to piddle away the rest of the afternoon… I have almost 100 pages here!” Her entries continued for 300 pages. Single-spaced. All on paid time. A supervisor discovered the journal and fired her.

Not only is Nowak an astronaut employee of NASA, the male involved in the supposed affair is an astronaut employee of NASA, and the other woman also is an employee of NASA.

In addition, all three people involved are members of the military. Nowak is a Navy captain. The man who is or was the object of her spurned affections is Bill Oefelein, a Navy commander. And the other woman, Oefelein’s current female friend, is Colleen Shipman, an Air Force captain working for NASA.

And their military employers (the Navy and the Air Force) do have policies that prohibit officers from engaging in improper fraternizing or sexual behavior. Specifically, the policies prohibit officers from engaging in adulterous relationships. (The question of whether or not the Nowak-Oefelein-Shipman triangle involved adulterous behavior is a question the military at present is deferring to civil law authorities to explore and answer.) The maximum punishment in the military, for confirmed adulterous behavior, is dishonorable discharge and confinement of up to a year in a military brig.

In addition, officers in the military are prohibited from having relationships with other officers that are “prejudicial to good order or of a nature of bringing discredit” on the service. These kinds of relationships that are “prejudicial to good order” or that “discredit” are defined as relationships that give the appearance of favoritism or that undermine the chain of command.

What astronaut Nowak is accused of doing:

Nowak allegedly committed several crimes, any one of which could embarrass NASA, the Navy, and the Air Force. The story reported repeatedly and extensively in the media over many days sometimes made NASA the brunt of comedy routines, jokes, and cartoons.

Police allege that Nowak: drove 900 miles non-stop from Houston to Orlando for the purpose of kidnapping and/or murdering Shipman…wore an astronaut’s diaper making it possible to skip toilet stops on the journey…carried in her possession or her car a CO-2 powered BB pistol, a steel mallet, a folding knife with a four-inch blade, three to four feet of rubber tubing, black gloves, six latex gloves, and garbage bags…confronted Shipman in her car at the Orlando airport and attacked Shipman with pepper or some other disabling spray…while wearing a hooded trench coat and a black wig.

Police charged Nowak with attempted kidnapping, battery, attempted murder, attempted burglary, and destruction of evidence. Last week, Florida prosecutors charged Nowak with attempted kidnapping but declined to file an attempted murder charge recommended by police.

Shipman requested a restraining order against Nowak, accusing Nowak of stalking her during the previous two months, and using government contacts and/or computers to obtain personal information about her. She later dropped the court order request.

Nowak has said the purpose of her confronting Shipman was to talk with her. She was released from jail on $25,500 bail. Her attorney has rejected the police conclusions, arguing the facts do not support the criminal charges.

Policy concerns for employers:

The Nowak behavior giving rise to the criminal charges, and the apparent fraternization between NASA employees (and military officers) trigger a number of concerns for employers regarding employees’ personal behavior outside of their work time. Among them are these:

Can an employer prohibit employees from engaging in romantic relationships (and/or fraternizing, having more than normally friendly relationships) with coworkers?

Can an employer attempt to control employees’ moral behavior by threatening discipline or termination for an employee’s public drunkenness, illegal drug use, or adultery?

Can an employer prohibit employees’ from engaging in employment with other employers (moonlighting)?

Can an employer adopt policies to discourage employees’ unhealthy behavior? Can an employer discriminate against employees who smoke, for example?

The answer to the above questions, and to similar questions, is that employers can (and some employers do) prohibit an employee’s personal behavior at work and away from work when the employee’s actions can have a negative, detrimental, and/or harmful impact on the employer’s reputation and/or business interests…or when the employee’s personal behavior interferes with or harms the employee’s job performance or the job performance of coworkers.

Employers face risks if they go too far in attempting to prohibit certain personal behavior or take action against an employee for certain private activity.

For example, some employers refuse to hire applicants with criminal records. Some employers will terminate an employee who is charged with a crime. But these types of actions by an employer can open the employer to charges of illegal discrimination if the employer is unable to show that the employee’s past behavior or alleged behavior is a risk to the employer’s business interests.

And another example. Employers have a legal obligation to protect all employees from sexual harassment and sex discrimination. That’s a major reason why some employers prohibit employees from having romantic relationships with coworkers, especially prohibiting managers and supervisors from having romantic relationships with employees they manage or supervise. There’s a real risk that romantic relationships will turn into or deteriorate into actions that are sexually harassing or illegally discriminating.

But, when the employer adopts a policy prohibiting romantic relationships between coworkers, some employees may assert that the employer is interfering with their personal rights and their right to privacy.

What’s an employer to do? If your business or organization already has a policy or policies dealing with employee romances, employee fraternization, and/or employee behavior away from work…have the policy or policies reviewed by an attorney familiar with employment law. If your business or organization does not have policies on these topics and is interested in developing such policies, consult with an attorney familiar with employment law.

Following are examples of policy language on such topics.

Sample “Nepotism and Romance Between Coworkers” Policy Romantic and/or intimate relationships between supervisors and those they supervise can create the appearance of a hostile work environment for other employees and can lead to charges of illegal sexual harassment. Therefore, the Company prohibits dating and romantic involvement between supervisors and individuals they supervise, and between employees working in the same department or on the same work team. When employees working in the same department become romantically involved, begin cohabiting, or marry, the Company will first attempt to offer comparable employment in another department to one of the individuals. If comparable employment is not available, the Company will terminate one of the employees. The employees involved will be offered the opportunity, together, to decide which employee will move to another department, or which employee will be terminated. If the two employees together cannot reach a decision on the job move or on the termination, the Company will make the decision based on the Company’s best business-related interests. Employees who initiate a romantic involvement, who initiate cohabiting, or who marry while working for this Company are treated according to the guidelines in this policy. A part-time employee, hired for a period of less than six workdays in a three-month period, is not subject to this policy. In addition, the Company does not permit supervisors to directly supervise relatives. For purposes of this policy, “relative” means the following persons related to an employee by blood or by law: A spouse, child, parent, brother, sister, aunt, uncle, grandchild, grandparent, son-in-law, daughter-in-law. Also, for purposes of this policy, “relative” means a domestic partner, that is an individual with whom an employee is cohabiting. It also means the following persons related to the domestic partner by blood or by law: A child, parent, brother, sister, aunt, uncle, grandchild, grandparent, son-in-law, daughter-in-law.

Sample “Personal Behavior” Policy 0ccasionally an employee’s personal behavior could or actually does negatively affect the best interests of the Company. So the Company has a business-related interest in asking employees to refrain from personal behavior that could not only harm them and damage their own reputations, but could also harm the reputation and business interests of the Company. Therefore, employees must not engage in personal behavior on the job or away from the job in a manner that could or does negatively impact the reputation of the Company or that could or does negatively impact the business interests of the Company. In addition, employees must not engage in personal behavior on the job or away from the job in ways that negatively affect the employees’ job performance or the job performance of coworkers. If the Company determines an employee’s personal behavior or actions negatively affect the Company’s reputation or business interests or negatively affects the employee’s job performance or job performance of a coworker, the Company may discipline the employee up to and including termination.

[NOTE: Information and guidance in this story is intended to provide accurate and helpful information on the subjects covered. It is not intended to provide a legal service for readers’ individual needs. For legal guidance in your specific situations, always consult with an attorney who is familiar with employment law and labor issues.]