“Duck Dynasty” Quackery: May California Employers Terminate Employees Based on Off-Duty Conduct?

“Duck Dynasty” star Phil Robertson found himself out of a job last week – at least for the time being – when he was indefinitely suspended from the hit A&E reality show after making several anti-gay remarks in a GQ interview.  Furor has grown over Robertson’s suspension, with the family breaking its silence to say that the show might not go on without the patriarch’s involvement.  With uncertainty abounding, the “I Stand with Phil” movement continues to build, as hundreds of thousands of Christian consumers and free speech advocates urge the network to rethink its decision.

While the specifics of Robertson’s employment contract with A&E aren’t publicly known, entertainment-industry protocol suggests that he likely was suspended pursuant to a “morals clause” in his contract.  Simply put, a morals clause operates as a termination mechanism in an employment contract that allows the employer to terminate the employment relationship on the basis of certain behavior of the employee.  These sorts of clauses most often arise in the public sector (such as with police officers and university officials) and in the sports and entertainment industry, where studios, producers and sports teams wish to protect their reputation and image from the often volatile and questionable behavior of the talent they employ.  For example, in March 2011 the Warner Brothers television studio made headlines when it terminated its employment contract with Charlie Sheen of the show “Two and a Half Men” pursuant to a morals clause after Sheen went on a public-tired that included several well-publicized drug binges as well as making allegedly anti-Semitic comments about the show’s executive producer.  Sheen and Warner Brothers eventually settled their dispute out of court.

The “Duck Dynasty” dispute has attracted attention to the enforceability of morals clauses.  Cases around the country over the past several decades, including in California and New York, have addressed morals clauses in public sector and sports and entertainment employment contracts.  These cases show that, in certain circumstances, courts are more than willing to find that a termination of an employee can be justified on the basis that the individual violated an express morals clause.  The use of morals clauses has also become more common in the employment contracts of “C-level” executives outside of the sports and entertainment industry.  Similar to their contemporaries in sports and entertainment, employers of these individuals will often demand morals clauses in an attempt to have a mechanism in place to quickly sever ties with any “immoral” behavior on the part of these employees because they are viewed by the public as representing the company and their personal behavior may tarnish the overall goodwill of their business.

Unfortunately, no California case has specifically addressed the enforceability of morals clauses in the private employment context (outside of the sports and entertainment industry).  However, under the at-will presumption of California Labor Code section 2922, a private employer may terminate an employee for any reason, so long as it is not an illegal reason.  Thus, in the absence of a statutory bar, it appears a private employer may base a termination on off-duty conduct, including conduct the employer believes is “immoral.”  However, several California statutes regulate when an employer may take adverse action against an employee based on off-duty conduct:

– California Labor Code section 96(k) appears to protect employees from adverse action based on “lawful conduct occurring during nonworking hours away from the employer’s premises.”  However, this statute has been interpreted by California courts to apply only to conduct that already has constitutional protection.  (See Barbee v. Household Automotive Fin. Corp. (2003) 113 Cal.App.4th 525; Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72.)  Interestingly, some people – notably, failed vice presidential candidate Sarah Palin – raised the issue of free speech in defense of Robertson.  However, the “Duck Dynasty” star isn’t like to find any legal recourse under the banner of the First Amendment, since the First Amendment protects citizens from violation of their free speech rights by federal, state or local governments and not private employers.

– California Labor Code section 432.7 bars employers from taking adverse action based on any arrest or detention that does not result in a conviction, but allows them to inquire about an arrest for which the employee or job applicant is out on bail or on his or her own recognizance pending trial.  Thus, under certain situations, an employer may base adverse action on results of their own investigation of the facts surrounding the incident for which the employee or job applicant was arrested.  (See Cranston v. City of Richmond (1985) 40 Cal.3d 755.)

– California Labor Code sections 1101 and 1102 prohibit employers from acting against their employees based on their political beliefs and activities. (See Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th 1477.)

– California Labor Code section 980 (effective January 1, 2013) prohibits employers from requesting job applicants or employees for access to their social media, except in limited circumstances.  This statutes also prohibits employers from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against job applicants or employees, for not complying with a request or demand by that violates this statute.

– California Labor Code sections 232 and 232.5 protect the rights of employees to disclose information about their compensation or working conditions.

Furthermore, in a series of recent rulings and advisories, the federal National Labor Relations Board says workers have a right under the National Labor Relations Act to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or outside of the office on social media.

Based on the lack of California case law on the enforceability of morals clauses in private employment contracts outside of the sports and entertainment industry, it is advisable that employers take great care in drafting morals clauses to ensure they do not run afoul of California statutes protecting certain off-duty conduct.  While employers have the right to protect the reputation and goodwill of their business, they also need to make sure they comply with California law in doing so. 

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