This Looks Bad
How External Investigators Evaluate “Conduct Unbecoming” Cases
Employee discipline in “at-will” employment is fairly simple—an employee can be disciplined for any reason or no reason, just not for an unlawful reason (race, sex, religion, whistleblower retaliation, etc.). In public employment and unionized workplaces, however, the dynamic is different. Due process rights and collective bargaining agreements usually mean discipline can only be imposed “for cause.” This puts employers and rule-makers in the position of having to list, justify, and possibly negotiate what “for cause” means.
As a practical matter, there is no list comprehensive or exhaustive enough to cover every conceivable act of misconduct leading to discipline. As any seasoned Human Resources or Human Resources–adjacent professional will tell you, someone will always find a creative way to engage in a form of misconduct you never even considered. That is what makes the “conduct unbecoming” category of misconduct such a flexible and valuable tool—it fills in the gaps left by more concrete, explicit rules and policies. But, with that flexibility comes ambiguity and subjectivity. Whether an employee’s conduct constitutes “conduct unbecoming” is often in the eye of the beholder, and is almost always case-specific.
Textually, the “conduct unbecoming” concept is usually defined as some variation of “conduct that brings disrepute on, or reflects negatively on [the employer].” While external investigators are not often called upon to make policy findings, it happens frequently enough that we have developed a non-exhaustive list of considerations. These considerations can help decision-makers take a more principled approach to what is often a nebulous evaluation.
As outlined below, keep these five considerations in mind the next time you need to evaluate whether employee misconduct runs afoul of “conduct unbecoming” provisions.
Employee Position
High-level managers and executives direct the actions of an organization. Because of this, the public reasonably imputes the actions of an employer to those managers and executives. Additionally, the fact that an employee holds a higher-level position implies that the organization trusts that employee’s abilities and judgment. Similarly, those in public-facing positions are also reasonably seen as agents of their employers. In a sense, these employees are reasonably seen as the trusted faces of the organization. Thus, as compared to a behind-the-scenes, line-level employee, misconduct on the part of a more visible official tends to be more closely associated with the organization.
When a high-level employee, or an employee in a position of trust, engages in misconduct, it tends to raise questions about how and why the employer put that person in such an important position. For instance, when the Chief Financial Officer (CFO) embezzles money, the public is going to question the judgment and competence of leadership that put the employee in such a high-level position of trust, and why internal controls failed to prevent malfeasance. Similarly, when an employee falls asleep on duty, it makes a big difference if they are the night-shift janitor cleaning the offices the 911 dispatchers use, or one of the 911 dispatchers themselves.
When a high-level employee engages in wrongdoing, the misconduct reflects negatively on the employer. That consideration means a decision-maker will be more justified in relying upon conduct unbecoming policies to issue discipline.
Private Versus Public Misconduct
In most circumstances, the more private the misconduct, the less likely it will be considered conduct unbecoming. However, even private misconduct can run afoul of the rules in the right circumstances. To help appreciate how, and when, private misconduct might run afoul of the conduct unbecoming rules, consider the following examples:
If an off-duty network engineer makes a racist joke while camping in the woods with a long-time friend, it probably will not impact the workplace, and thus, it is less likely to constitute conduct unbecoming. An off-duty Police Chief making the same joke with a coworker in front of a group of strangers at a bar, however, is a different story.
From a conduct unbecoming perspective, a firefighter who gets a DUI in a private vehicle while on vacation out of state is a very different case from a firefighter who gets a DUI while driving an ambulance at the end of the work shift.
A network engineer who stalks an ex-girlfriend by watching her social media posts on the weekends is very different from a network engineer who uses their credentials to track their ex’s GPS location while on their work computer.
A groundskeeper engaging in tax fraud is very different from a CFO who leads a publicly traded organization committing tax fraud.
Under the right circumstances, any of the above examples can violate conduct unbecoming policies. However, the more publicly problematic the conduct is, the more likely it will constitute a policy violation. When evaluating whether private conduct runs afoul of conduct unbecoming rules, keep a few things in mind. One, did other employees engage in the wrongdoing too, or did coworkers witness the behavior? If so, the conduct is more likely to negatively impact the workplace and degrade working relationships. This means the conduct more likely counts as conduct unbecoming. Two, did the misconduct involve employer equipment, or was misconduct enabled only by virtue of employment? If so, the employee unreasonably chose to use company equipment to engage in private wrongdoing. This presents a strong case for discipline. Three, did the bad actor invoke their employment or create some connection through their actions? If a City Manager attempts to bully the Planning Department into issuing them permits for a vacation house out of state, that reflects poorly on the City, too.
Connection to Employment—Intentional or Otherwise
The more closely related the misconduct is to the employee’s job, the more likely it will reflect poorly on the entity. In contrast, the more tangential the misconduct is to the workplace, the less likely discipline will follow. To help appreciate how, and when, a poor decision by an employee might violate conduct unbecoming rules, consider the following examples:
Although both can violate policy, tax evasion perpetrated by the City’s CFO looks much worse than when a part-time, line-level worker does the same.
A racist, anti-government, conspiracy theory–laden podcast will certainly garner bad press and troubling publicity when the podcast is made by the local Presiding Judge.
Cheating on your spouse is a bad look for any employee, but particularly when the perpetrator sits in a position of power and engages in a relationship with a subordinate employee.
Ethical Violation, or Just Poor Taste?
Not all misconduct is created equal. This is particularly true when comparing conduct that reflects ethical and moral shortcomings to conduct reflective of immaturity and poor taste. Ethical and moral failings typically warrant serious discipline according to conduct unbecoming provisions, whereas oral warnings and coaching might better serve the employer in addressing conduct reflective of poor taste. Consider the following examples to better appreciate these important, but at times nuanced, differences:
An employee stealing company equipment is a more serious problem than an employee taking home all the company leftovers after a lunch meeting without asking.
While wearing a “F**k the Dallas Cowboys” hat on casual Friday is a bad idea, it pales in comparison to wearing a “White Power” t-shirt.
Embellishing your athletic accomplishments to your supervisor—“I hit 20 homeruns my senior year”—is understandably frowned upon, but it is not as troubling as misrepresenting your work experience and relevant qualifications when applying for an internal promotion.
Publicity of Misconduct
As a general matter, the more public the misconduct, the more likely it violates conduct unbecoming standards. However, decision-makers also need to wrestle with how to administer discipline when conduct is only somewhat, or perhaps not all, publicized. In these contexts, a sliding-scale approach is usually appropriate. For instance, the more public the misconduct, the more severe the discipline can be. The employee who violates the company’s drug-use policy during happy hour with one other employee at the local pub might be disciplined, but probably not as severely as the employee who brazenly shares and uses cocaine at the company holiday party.
As these principles and examples illustrate, evaluating conduct unbecoming calls for a nuanced, case-by-case analysis. However, by applying these principles, decision-makers will be much better positioned to articulate their rationale if they choose to sustain allegations of conduct unbecoming. This, in turn, improves the odds that any disciplinary action will hold up on an administrative appeal (also known as a “Skelly” hearing) and arbitration. The investigators at Van Dermyden Makus and within its Public Sector Practice Group are regularly called upon to investigate allegations of conduct unbecoming. They are experts at applying thorough and thoughtful analysis to these and many other kinds of complex, nuanced matters.
Did you know? VMLC now offers independent Skelly Officer services for when employers need a truly independent and credible outside perspective that holds up to scrutiny.