
If you follow football news at all, you know that the
Peterson situation mirrors, in many respects, other football news. The
NFL is currently under siege for mishandling its initial response to a domestic
violence incident involving Ray Rice, a marquee player for the Baltimore
Ravens. There are reports that the NFL knew of Mr. Rice’s conduct
for quite some time before it took responsive action. In both situations,
the football organizations have been accused of turning a blind eye to
egregious conduct to keep their star players in the game. The public
backlash and negative reaction from sponsors have prompted the NFL and its
teams to take more serious action in their later responses to the Rice and
Peterson incidents.
Events like this are good times to reflect on how the rules
work for employers and how to handle matters well to try to avoid the public
limelight. As a general starting point, the rule in most states,
including Minnesota, is “at-will employment.” An employer can take action
against an employee for any reason, unless the reason is unlawful (i.e. because
of an employee’s legally protected class status or in retaliation for protected
activity, like union organizing or taking protected leave). But what
about criminal activity? On that front, employers need to exercise
caution. It is generally unlawful to act based solely on an arrest rather
than the conduct at issue. In addition, some states, such as Wisconsin,
prohibit discrimination because of an employee’s conviction record as well,
unless the conduct is sufficiently job-related. Likewise, it can violate
federal law to take negative action against an employee for criminal conduct
unless there is a tight nexus between the conduct at issue and the individual’s
job duties that creates a genuine risk for an employer.
Losing fans and sponsors would likely meet these standards
for the NFL. But, other employers should make sure they carefully
consider the conduct at issue when determining what action should be taken in
response to off-work conduct. And when it comes to matters of domestic
violence, it is often the victim who is punished by employers. That’s a
problem too. Minnesota law flat out prohibits discrimination based on
marital status, including discrimination on the basis of the identity,
situation, actions or beliefs of a spouse or former spouse. In addition,
Minnesota law has recently been expanded to allow victims of domestic violence,
sexual assault, and stalking to use paid leave to pursue protective measures
and services.
One key takeaway for all employers from the recent NFL
drama: Think things through carefully, consider your business and legal risks,
and try to get it right the first time around.
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