“Housewives” Firing: When Is It OK to Terminate an Employee for Off-duty Behavior?
A new case out of the Big Apple highlights the risks of firing an employee for off-duty conduct.
Jason Colodne, former president of Patriarch Partners LLP, was fired after appearing on the TV show “Real Housewives of New York City.” He is the boyfriend of Bethenny Frankel, the only unmarried “housewife” on the show.
Patriarch’s management reportedly was “horrified” when it found out that Colodne appeared on the show. “I’m suggesting that one of the reasons for his absences in the office was because he was filming a tawdry show,” said the firm’s lawyer. “They found out he was on the show when promos ran. He’s on a show and never mentioned it. Any other company would have fired him on the spot. He also was not performing or bringing in new deal flow.”
Colodne is suing the company for $55 million, alleging that he was fired without cause. “His appearance as an incidental on the show does not violate any of the terms of his employment contract, and Patriarch is using that appearance in an attempt to avoid paying him tens of millions of dollars in hard-earned compensation,” his attorney said. Apparently, the focal point of Colodne’s appearance was promoting a charitable organization that raises money for neurofibermatosis, a condition from which his sister suffers.
Potentially complicating things for the company is the reputation of Colodne’s former boss and head of Patriarch, Lynn Tilton, who allegedly once said to the New York Observer: “I always show cleavage.”
How Should Employers Approach Off-duty/Off-site Conduct?
Employers typically have a tough time with this issue. I once took an online sexual harassment training course in which a question was asked that went something like: “Can off-site or off-duty conduct constitute sex harassment?” I kept flunking the test because I refused to answer anything but “yes.” Apparently, the test designers were attempting to send a message to employees that it was perfectly OK to, for example, run around naked and hug your co-workers as long as it’s 5:01 and you’re five feet off company property.
Like all employment law issues, the goal should be fairness based on all the facts and circumstances. Key considerations include:
- How severe and pervasive was the conduct?
- Did the conduct negatively impact the company’s reputation?
- Did the conduct negatively impact the employee’s job performance or the job performance of others?
- Did the conduct violate any of the employer’s policies?
- Did the conduct violate any term of the employee’s employment agreement (e.g., a no-moonlighting provision)?
The employer should gather all the facts and make a decision based on the foregoing, always asking, “What’s the right thing to do?”
What Should Employees Do?
In the case of a public appearance, media opportunity, etc., it’s always a good idea to get your employer’s permission first. Check out your company’s policies and anything that might be relevant in your employment agreement. And never never never never lie to your employer about where you’re going or why.
If in doubt, follow the “Mom Test”: Would you want your mother to read about what you’re doing on the front page of the paper? If the answer to that question is “no,” then don’t do it.
So, Who’s Going to Win This Case?
Like all good lawyers, my answer is: “it depends.”
In all likelihood, it will come down to what Colodne’s contract says. If it contains a “no-moonlighting” clause — particularly one requiring him to obtain company permission prior to an appearance of this nature — he could be in trouble. In addition, if he in any way misrepresented his activities or whereabouts to the company, that could kill his case.
Another key issue will be whether the company suffered any real damage due to Colodne’s appearance. The fact that it appears to have been mostly a do-good charity kind of thing could be a big boost to his case, particularly if his lawyer is able to contrast it against the public conduct of Colodne’s supposedly racy former boss.
Stay tuned to see how this plays out.
Article by Mark Toth, Chief Legal Officer of Manpower’s North American operations, and courtesy of Manpower Employment Blawg. Mark also serve as Chief Compliance Officer and Vice President of Franchise Relations and serve on our Global Leadership Team, North American Lead Team, Executive Diversity Steering Committee and Sarbanes-Oxley Steering Committee.
