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Arbitration and the Off-Duty Conduct of Employees

NCJ Number
M Marmo
Date Published
90 pages
This study examined how arbitrators deal with disciplinary actions taken against bargaining unit employees for off-duty behaviors considered inappropriate by the employer.
Based on data from 'Labor Arbitration Reports,' over 100 cases occurring since 1970 and involving public-sector employees were examined. Cases include those involving police and firefighters, State and local employees, and Federal employees. Overall, findings indicate that arbitrators have consistently defended employers' right to discipline public employees for off-duty behavior that has an adverse impact on the agency. Factors used by arbitrators in determining adverse impact include effects of the behavior on job performance and fellow employees and direct and indirect damage to the management's operation. Other factors considered include the standard of proof required and the impact of employee criminal behavior on management's operation. A comparison of the application of these factors in public and private sectors indicates that the extent to which an arrest or conviction for off-duty behavior can serve as a basis for disciplinary action appears identical with respect to possible negative impact on the employers. However, considerations such as the effect and greater likelihood of adverse publicity and the more sensitive nature of many public-sector jobs make it more likely that off-duty criminal behaviors of public-sector employees will be judged to have an indirect but damaging impact on management. 236 notes.