Ask the Legal Expert about ... off-duty abuse allegations

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John Durso, Esq.  Nixon Peabody LLP
John Durso, Esq. Nixon Peabody LLP

A member of our executive team is going through a divorce where his ex-wife alleges physical abuse. What should we do?

There has to be a balance between innocent until proven guilty and feeling like the last thing you want around vulnerable elders is someone who could be or is alleged to be violent.

It is very difficult for any employer to discipline or discharge an employee for off-duty conduct or conduct not involving coworkers or people served by the employer. Moreover, it is extremely difficult for an employer to attempt an adverse action against an employee based on allegations, without a court finding the allegations were true or without the employee admitting that the allegations were true.

If an employee were found guilty by a judge or admitted to be physically abusive to an elderly resident, then the employer entrusted with the care and protection of the resident may be able to fire or discipline the employee for violating the employer's policy not to abuse a resident. Certain employers are able to take actions against an employee for off-duty conduct.

For example, a church that is opposed to abortions can prevent its teachers or other employees from publicly endorsing abortions because such public actions undercut the school's Christian faith community and oppose the belief of the church employer. The church employer should have a written policy or clause in the employment contract prohibiting off-duty conduct that is contrary to the beliefs of the religious church employer.

Thus, without more of a connection between the misconduct and the propensity to be violent to the residents, it would be difficult to discipline or discharge the employee based solely on the allegations by his wife during divorce proceedings.

Please send your legal questions to John Durso at ltcnews@mcknights.com.