“Can I be fired for being ‘insubordinate’ when I am not even working?”

Question: I was doing a self character reference petition about how I was as an employee. I was having people sign my petition at my work in the parking lot.

The night shift manager on duty at the time asked me to leave, and I responded saying that there are no signs stating that “trespassing” or “loitering” was prohibited, so I didn’t know what the problem was.

I was fired the next day for “Insubordination: failure or refusal to recognize or submit to authority of a supervisor or superior.”

Question: Can I be fired for insubordination even though I was not on the clock working at the time this took place? 

Bedford, Iowa

Answer: Your question is a very interesting one, and more people are asking it than you might think.  That is because it is being raised more and more in the courts, in this way: “Can an employer fire an employee for what the employee does on his or her own time?”

Some employers are firing employees because they smoke cigarettes at home. Some employers are firing employees who live with their boyfriends or girlfriends without being married. Some employers are firing employees because they date their bosses or their subordinates on the weekend.

It seems the courts are, slowly but surely agreeing on using the following “guideline” in deciding these cases: “Is the conduct for which the employee was fired a threat to the effective and efficient running of the business?” If the answer to that question is “yes,” then the firing is upheld; if the answer to that question is “no,” then the firing is not upheld.

If an employee is living with her boyfriend outside marriage, this would not seem to cause a threat to the working of the business. If, though, the employee was dating her boss on the weekends, this would seem to pose a potential threat to the peace and tranquility of the workplace. If an employee smokes cigarettes at home, it’s a difficult question to answer, because some health insurance companies are considering charging higher premiums for those who smoke cigarettes, and that would cost the employer more money.

In your case, since you were in the company parking lot, with other employees, and came to the attention of a shift supervisor, I think a court would uphold your firing, because your conduct could have – in the eyes of the shift supervisor – threatened the peace and orderliness of the workplace.

Sorry to give you information you were hoping I wouldn’t, but I’m sure you agree you’d rather have the truth. Thanks for writing in, and I hope you have good luck in finding a new job soon.

P.S.: If you would like to speak with me directly about this or other subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations, just [click here.]

         Best, Al Sklover

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© 2010 Alan L. Sklover, All Rights Reserved.

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