Johns Hopkins Hospital recently separated Jonathon Wagner after he was arrested and charged last week for acts unrelated to his employment and which occurred off-duty and outside of work hours. Wagner is facing multiple criminal charges including malicious destruction of property of a Baltimore-based business motivated by race/religion. Security footage from the evening of August 6^th captured Wagner splashing red paint on the door, walkway, as well as on Israeli and American flags which were displayed outside of the business. His acts were derided as antisemitic and calculated.

State and federal courts in Maryland have recognized that off-duty conduct can provide a legitimate, non-discriminatory basis for termination when it impacts the employer’s business interests, reputation, or the employee’s ability to perform their job. Examples include criminal charges, inappropriate social media activity, conflicts of interest, or behavior inconsistent with the employer’s code of conduct.

Earlier this summer, my colleague Tony Herman wrote an article focused on the Fourth Circuit’s affirmation of a firefighter’s dismissal after posting transphobic Facebook posts. (The Fourth Circuit hears appeals from federal cases in MD, VA, WV, NC, and SC). In that case, similar to the case involving Wagner, several citizens helped to identify the firefighter and link him to his employer. Following his termination, he filed a wrongful termination claim.

In practice, employers should have clear policies addressing off-duty conduct that could affect the workplace, apply those policies consistently, and document the legitimate business reasons for termination decisions. Doing so helps reduce risk of wrongful termination claims and demonstrates that the action was based on policy and business necessity rather than discriminatory reasons or no reason at all.

Now may be a good time to have your employee handbook reviewed by an employment lawyer to ensure your policies protect the company’s reputation from bad actors.