Schafer: Off-hours activities can burn employees

Minnesota Vikings Football LLC seems determined to get rid of its employee Chris Kluwe, and you can't help but conclude that his off-duty advocacy of gay rights was a part of management's thinking.

The Vikings have insisted that the team selected a star punter, the position Kluwe plays, in this year's draft of collegiate players to create a "competition" for the job this season. A spokesman said, "Vikings ownership, coaches and management have long supported Chris's right to speak on social issues."

But by the investment of a scarce resource, the draft pick, the team signaled that no such fair competition for his job will take place. Kluwe's career in Minnesota might not make it to Tuesday.

The personnel practices in professional sports are not like those the rest of us use, and as Kluwe himself has noted, clearing room for younger and cheaper employees is routine.

But the question of how much say an employer should have over nonwork behavior is one that confronts every company, and maybe the story of Kluwe provides a small teachable moment for managers. The smart starting point is to be cautious, because sacking employees for off-duty behavior, even if legal, can be risky.

That's because doing so is routinely viewed by other employees — and jurors — as fundamentally unfair. And in a world with hyperactive social media networks, even firing those without the visibility of professional athletes can lead to a public relations headache.

An at-will employee can be fired for nearly any reason, but there is a long list of employer practices that are unambiguously illegal, including canning people for reasons of race, national origin, age or gender.

Some states, and Minnesota is one, also have a specific statute that makes it illegal to discriminate based on an employee's political activity. In 20 years of employment law practice, however, Dan Oberdorfer of the Minneapolis firm of Leonard, Street and Deinard said he has yet to be asked by a client for the legal implications of disciplining someone for off-duty political activity.

The off-duty issues more likely to be a concern to employers are comments an employee may have made on social media sites or misbehavior at a bar after a trade show while still wearing the corporate logo golf shirt.

Recently employers have had to rethink how they regulate social media activity. Many had policies that simply said no criticism of the company or its employees would be tolerated, and the National Labor Relations Board has pushed back on those for being too broad.

The board has argued that social media sites like Facebook are the new water cooler, and employees need to be free to gripe about the boss with others on Facebook, provided those posts could somehow be construed as being about some effort to improve working conditions.

Some large employers I contacted last week said they had no specific policies on off-duty conduct in their employee handbooks beyond social media. Others had language that suggested that employees need to be mindful of conduct that might create a negative impression of the employer — although what this could mean wasn't at all clear.

"Many companies have now created a code of conduct, or a section on respectful behavior or values," said Janice Downing, principal of CommonSense Consulting@Work of Brooklyn Park. "Some go as far as to say it applies anytime you may be viewed as a representative of the company."

In the well-known example of an Idaho executive on personal travel who was charged with assault this year for allegedly slapping a toddler during a Delta flight from Minneapolis-St. Paul to Atlanta, his employer may have cited that kind of language as the executive parted ways with the company.

"I generally advise caution in spelling out expectations for off-duty behavior," said Judith Bevis Langevin, a shareholder at the Minneapolis law firm of Gray Plant Mooty. "Most people find an employer's desire to control or regulate off-duty behavior intrinsically offensive."

An employer does have legitimate interest in preserving reputation. But Downing noted that when Kluwe has posted on websites or appeared on television to talk about his support of gay rights, whatever anyone may think of the reputation risk to the Vikings of his views, he has been careful not to appear in a Vikings jersey.

"I think he has been schooled enough to know what side of the line he can run on and be OK," Downing said, and added that "when I saw him on TV, I thought, 'Wow, this guy is cleaner than, I don't know, a whistle. This guy is really smart.' "

Kluwe almost certainly has followers among his more than 169,000 on Twitter who have never seen a football game and cannot say with any certainty what a punter does. They know and admire him for his activism, for writings like the one that appeared on the Huffington Post early last week.

Kluwe appears to be a middle-of-the-pack performer in an acutely competitive profession, but to let him go with a year left on his contract and at the height of his celebrity as an activist will invite a storm of protest.

An uproar followed the firing earlier this year of a waitress at an Applebee's restaurant when she posted a photo of a guest check on the social media site Reddit. Applebee's later said its franchisee acted because it was a clear violation of a customer's privacy. That sensible explanation didn't keep an avalanche of complaints from hitting Applebee's Facebook page or advocates from creating websites that demanded she be rehired.

One thing is certain: Kluwe's successor with the Vikings will be far less outspoken.

After all, as the New Yorker critic Adam Gopnik pointed out, the leaders of the Inquisition in the 1600s found they didn't have to burn all that many philosophers at the stake.

Even with no Facebook or Twitter, word of that kind of thing did get around.

lee.schafer@startribune.com 612-673-4302