9 Questions Employers Need to Answer Before Firing an Ashley Madison Customer
AshleyMaidson.com (“AM”) has been referred to as the premier website for married individuals seeking partners for extra-marital affairs. For the record, I know that only after reading about the recent hacking of it, discussed below!
I recommend you do not check that website at your home or work. There could be personal or professional consequences.
What if you find out that one of your employees is an AM customer? Can you fire him or her? Do you want to fire him or her?
Okay, here comes the annoying lawyer-ism: The answer to both questions is “it depends.”
Whether you may want to fire the employee depends primarily on “reputational risk.” Reputational risk has two key elements: the nature of your business and the nature of the employee’s job. If your organization provides martial counseling, then the employee’s membership, now known to the public, could affect your organization’s reputation. The same would be true for faith-based organizations.
But what if you are producing a product or selling a service that has nothing to do with “marriage” or “morality?” In those cases, evaluating the reputational risk depends on the employee’s position.
Let’s assume the entrepreneur provides IT services. If someone works behind the scenes, his or her AM membership probably does not create a reputational risk. But what if the AM customer is the director of public relations? If the person is one of the faces of your organization, you may no longer want him or her representing you in a public way.
So let’s assume the entrepreneur decides that it wants to terminate the employee. Can it do so? We begin with the principle that most employees are at-will. They can be fired at any time, with or without prior notice, for any or no reason (but not for an illegal reason). Since the AM membership is not protected activity, such as whistleblowing or complaining about bias, there are no worries, right? Not so fast!
It is true that it would be hard to see how any government agency could conclude that having an AM membership is protected activity. But that does not mean that the employer has no risk. Indeed, the premise that the employee is at-will will not always be true.
Here are nine questions you should ask from both a legal and cultural factor to assess terminating an AM member:
1. Is there cause?
Does the employee have an employment agreement? If so, can you terminate only for “cause?” Would this constitute “cause” as defined in the agreement?
2. What about the union?
Is the employee an union member? Ordinarily, a union member can be terminated only for “just cause.” Generally speaking, in the union context, arbitrators are not inclined to find just cause based on off-duty conduct, unless there is a clear and strong nexus to the job.
3. Is this really an "at will'' job?
Is your handbook clear that the employee is at-will? The law varies from state to state on how specific the language needs to be. If the language is inadequate, there could be a wrongful discharge claim based on the handbook.
4. Did the employee break the law?
Is the adultery lawful in the state in which the employee works? This is important because some states prevent employers from terminating an employee for lawful off-duty conduct.
5. Has anybody else been fired for fooling around?
Is your company aware of any single employee having an affair with a married person and how has that been handled? If the single person was not fired and the employee who is an AM customer is, that could result in a marital discrimination claim under some state laws, although the reputational risk could be a defense if documented properly.
6. What if more than one employee was on Ashley Madison?
If you have more than one AM customer in your workplace, you need to handle them consistently, unless you have a legitimate reason to treat them differently, such as the nature of their positions. If there are legitimate differences, document the reasons so that you can defend a possible discrimination claim by the terminated employee based on gender, race or other status protected by federal, state or local law.
7. Is there bias, even if you don't think there is?
Is there any unconscious bias in the thought process? Please be consciously aware of the potential for unconscious gender bias when evaluating the situation. Philanderers are often described quite differently based on their gender. Would Donna Draper be as popular as Don Draper?
8. Did they keep it away from work?
Did the employee use the employer’s resources? In other words, was the employer’s network used to join AM? If so, this would be a factor that would strengthen the argument in favor of firing. The nexus to the workplace goes beyond reputation.
9. How will the team react?
What will the impact be on the workplace culture in terms of employee morale? The answer is not so clear. Other employees may not find the AM customer sympathetic. On the other hand, since AM purports to have 37 million customers, who knows?
I know that employees do worry about employers overreaching when it comes to their private lives. This just may be an exception but, for the record, this article is not legal advice and should not be construed as applying to specific factual situations.