February 21, 2014

Stripped Down to the Details, Literally! Can You Invoke the Moral Clause?

a moral clause is what his man wants

I get asked a lot of questions about employee issues because it’s what we do here, including questions surrounding the sudden revelation that an employee is also working at a strip club. Or even, as in two other cases (yes, I said TWO!) finding out an employee is an actual porn star.

We’ll just deal with that first situation today — so here are the bare facts. In this case, the doctor was discreetly informed by his office manager that the office manager had, quite by accident, discovered that one of their employees was stripping at a local club. I think it bears mentioning that the office manager was an eyewitness.

The doctor called to ask if there was more he could do, such as invoking a contract with a moral clause, in an effort to protect himself if he should decide to let the employee go.

Some details and wording here are changed for anonymity:

“My office manager was recently out with a friend at his bachelor party, and as many bachelor parties do, it ended up at an “adult” dance club. As the dancer came on stage, The O.M. realized it was one of our employees! Of course, as an office manager, he is responsible for managing this person at the front desk…

None of us had any idea she had this side gig – and there was a very awkward moment when she saw our O.M in the audience. She came in to work as usual on Monday, and we have not spoken about the weekend.

How should I deal with this, and what should the practice do? I’ve heard that having an employee contract with a “moral clause” can help employers handle this sort of thing…is that the best solution from now on?”

Well, first of all, give your CEDR advisor a call, because this is a complicated situation. There are some questions that need to be answered here, and some points to consider.

First, if the practice is unhappy with this employee (as one of their public representatives) and looking for some solid ground for disciplining or terminating her, there is a policy that could provide them some protection. Basically, it says, “all employees must inform the practice of all outside work, and give the practice an opportunity to approve it.” In that scenario the approach is not, “you cannot work there.” It is, “you cannot work both there and here at the same time.” While this is typically applied to an employee wanting to work for a competitor, it might empower the employer to address this issue without anyone claiming moral high ground — or sliding down any slippery poles of hypocrisy.

To approach this from a different angle, it might be difficult to apply a “moral clause” approach effectively here, even if there is an employment contract. After all, this question came from an office manager who was also in attendance at the strip club. In order to seek the refuge of such a clause, wouldn’t the doctor have to fire both employees? Otherwise, it’s awfully convenient to draw a moral line right at the edge of the stage, behind which it’s perfectly OK to toss beers back and dollar bills forward. In fact, this seems more like irony than a solid reason to fire just the stripper.

Employment contracts aside, a well-written office policy that addresses employees doing things that could hurt the image or standing of the practice could be invoked instead — but it carries the same moral problem with it. How does being a stripper qualify for more scrutiny than tossing bills at one who strips? Plus, individual employment contracts must be negotiated at the beginning and end of each employment, so that’s a problem unto itself.

What else might factor into this issue? With the information given, we simply don’t know. There’s no particular “protected” status mentioned — and to my knowledge, strippers, as a class, are not protected! But keep in mind that the employee could easily be in another protected class. For instance, she could have had a workman’s comp claim, or have made the practice aware of a recent mistake in paying her overtime properly, which would then mean that she is protected. Sans the details, it’s hard to say.

The bottom line…so to speak…is that the office manager is caught between the seats in the audience and the pole on the stage, and trying to take any particular action here would require a lot more information. There is an elephant with very little clothing on in the room, and the issue can be addressed, but we need to know for sure if there are any protected-class details, and what outcome the practice is actually seeking.

All in all, this is a tough situation, and there is no one right answer with the current information. However, I’m willing to go to the scene of the crime and investigate the factors involved!

Friendly Disclaimer: This information is general in nature, and is not intended to replace good counsel about a specific issue with either your attorney or your favorite HR expert

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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