Workers walk fine line along code of conduct

By Pete Bach. Originally printed in the Appleton Post Crescent, June 20, 2006

Sometimes it's clear how a responsible manager should deal with a workplace rule breaker.

Then again, the issues can get fuzzy if questions arise on someone's conduct off the job, say several Fox Cities labor experts.

"Ethical issues, behavioral issues and character issues present challenges when questions arise because of someone's conduct outside of the workplace," said attorney Randy Haak of Kaukauna, who deals with labor relations issues.

A case is pending in which a teacher for St. Joseph Middle School in the ACES/Xavier system that runs Appleton's seven Catholic schools, was fired for undergoing in vitro fertilization, a procedure that goes against church teachings.

After a state Department of Workforce investigator found that there was no evidence of sexual discrimination, the teacher, Kelly Romenesko, appealed.

When it comes to conduct outside of the workplace, there are gray areas.

An employee who tells a superior he had a drink on work time, violating a company rule can legally be dismissed despite his voluntary disclosure.

An employer must be consistent in their discipline, Haak said.

"Where it gets more difficult is if that employee comes along and says, 'But Joe or Susie went to a party and had a drink (on work time) and you didn't fire them. But I happen to be over 40 and they're 25 and you fired me,'" he said.

Unless the employee can prove they fit one of the protected categories in the state's discrimination laws, the employer should be OK, he said.

"Wisconsin for the most part is still an employment at will state, which means I can be fired for any reason," Haak said.

While rules vary from company to company, they must be followed, said Mary Felton, vice president of human resources for TIDI Products of Neenah.

"Some companies simply have zero tolerance policies when it comes to violence in the workplace, zero tolerance for drugs, zero tolerance for stealing. So it depends upon what the situation is," she said.

The reaction of managers should hinge on the severity of the incident, Felton said.

A lawyer who also deals with labor relations matters, Greg Gill of Appleton, said safety is the overriding concern.

In a job setting, safety takes precedence over privacy, so even if a complainant doesn't want an employer to take action the employer must act, he said.

"If you allow an employee to continue to drink on the job, to sexually harass someone or to use unlawful drugs, you're not only creating a dangerous environment for other employees but also potentially for the employee who violated the rule," Gill said.

In an instance where an employee disclosed to an employer that they engaged in conduct that violated company policy before they were hired, a different standard would apply whether they work for a public or private employer, Gill said.

"There's a whole range of gray about whether or not something is or is not substantially related to the performance of job duties," he said.

In a public setting, there's a set of rules that provide an employee a higher level of protection than those within the private sector, he said.

"And if you talk about religiously affiliated schools, they're given the constitutional right to have more definitive and, quite frankly, more rigid standards if they're consistent with their religious precepts in regard to employment decisions, including hiring or firing," Gill said.

Responsible manager/employee relationships:

Sources: Labor attorneys Greg Gill, Appleton; Randy Haak, Kaukauna

Pete Bach can be reached at 920-993-1000, ext. 430, or by e-mail at