The Grinch and Off-Duty Conduct

Did you hear the one about the Oregon oncology nurse who made a TikTok video to the Grinch theme song? She was in full uniform with her stethoscope, bragging how she ignores coronavirus guidelines. She does not wear a mask, social distance or prevent her kids from the same behavior when she is off-duty. And she noted how appalled her co-workers would be if they knew.  As fast as you can say “Viral Video” her hospital-employer immediately placed her on administrative leave while investigating. My guess: it’s her employer’s turn to play Grinch and fire her.

Off-duty conduct and expectations are best addressed via an employment policy or employee handbook. Absent that, discipline can still occur but it is messier to defend. Discipline for off-duty conduct absent state law* prohibitions are generally allowed when:

  1. The employer’s reputation has been damaged by the conduct;
  2. The conduct impacts the employee’s ability to perform her duties satisfactorily;
  3. The off-duty conduct causes other employees to refuse to work with the employee; and/or
  4. The conduct is criminal.

The nurse hits 3 of 4 out of the park here,  with factors 2 and 3 a lay-up to prove. The hospital was right to investigate before termination,  which is a best employment practice in non-urgent cases. Also, the hospital needs time to undertake serious contact tracing for possible COVID transmission.

The ways off-duty conduct are discovered may change–TikTok today, who knows what tomorrow– but the employer’s response remains the same. Remove, investigate and discipline–unless the conduct is dangerous or criminal.

Questions? We can help.

*CO, NY, CA and ND have various levels of protection for lawful off-duty conduct by employees