Employee Codes of Conduct Reconsidered

This time of year is big news in Dallas, and Texas in general. As high school, college, and professional football seasons begin, even the most casual sports fan will find it impossible to avoid conversations about Cowboys and Longhorns.

In the HR context, recent news from the NFL has focused attention on Employee Codes of Conduct. As you likely heard, two NFL players have been suspended for at least part of the 2009 – 2010 NFL season. Michael Vick, recently released from prison for operating a dog fighting ring, faces an uncertain future; NFL Commission Roger Goodell suspended Vick for his off-field conduct and recently “conditionally reinstated” Vick. When Vick will play in his first game for his new team is a question only Commissioner Goodell can answer. Donte’ Stallworth, however, absolutely knows he will not play NFL football until after the upcoming season ends. Commissioner Goodell suspended Stallworth without pay for the entire 2009 – 2010 season after Stallworth pleaded guilty to DUI manslaughter. Commissioner Goodell suspended Vick and Stallworth, in part, based on the NFL’s personal conduct policies.

The Vick and Stallworth cases are fairly easy cases, at least in the HR context. Both Vick and Stallworth pleaded guilty to criminal acts. An Employee Code of Conduct that prohibits illegal acts hardly raises an eyebrow. But what about acts that are not illegal? Off-duty policies may prohibit a wide range of personal (perhaps private) conduct. Intoxication, smoking tobacco, and nudity are not per se illegal. When and where you do it determines if you violated a law. When, why, and how may an employer regulate such off-duty conduct, especially when such conduct is not prohibited by any state law?

Oddly enough, state and local laws provide some guidance…but in the opposite direction. Several states have enacted “lifestyle discrimination” statutes that protect employee conduct that occurs off-duty and off-premises, so long as that conduct is legal. The vast majority of these statutes protect smokers, while only a handful protect “any legal activity.” In the absence of these legal protections, employers may discipline and/or discharge at-will employees for off-duty conduct wholly unrelated to their work.

To be clear, some employees, some employers, and some conduct are of the sort that bad publicity can be severely detrimental to an employer’s business. In an era where everyone seems to live their private lives in an online public forum, Employee Codes of Conduct have and serve a legitimate business purpose. Most, if not all, businesses will benefit from an Employee Code of Conduct. If nothing else, a candid internal discussion about such a policy will create a more enlightened (and hopefully more self-aware) workforce that understands their role as ambassadors for their organization. Let’s face it, a Code of Conduct is not an attempt to impose a one-life-fits-all approach. At its core, such a policy should remind us that we live each day as representatives of our friends, families, schools, clubs, and employers. Coaches regularly remind their players that they represent their organization and serve as role models in the community. It may shock employees to learn the same applies to them.