Halloween is not just for trick-or-treating. Adults and children alike enjoy dressing up and celebrating, but ghosts and goblins may not be the only things to avoid this season. Halloween can offer many temptations to behave like a kid again. Similar to inappropriate behavior at a holiday party, employees’ activities on All Hallows Eve may rise like the undead. If an employee decides to toilet paper someone’s house, or steal someone’s entire candy supply and gets caught and publicly outed on social media, they may end up with more of a trick than a treat at work.
Employers can take action to address inappropriate behavior – even if it is done “off hours.” This is especially true when the behavior reflects poorly on the employer, violates a company policy, or causes disruption in the workplace. For example, if Halloween night festivities result in an arrest for certain charges, this could be grounds to terminate an employee’s employment. As with most situations, there is no universal rule. However, many courts in Ohio have found when an employer has been reasonable in “finding fault” by the employee for the arrest, the employer may terminate the employee with just cause as related to unemployment benefits.
What if a costume or Halloween display goes viral? Some viral photos or videos are positive – who doesn’t like seeing dogs in costumes that look like Chucky running with a knife or a cowboy riding a horse? But, then there are also other photos and videos, which are brought to the attention of an employer, and could result in disciplinary action. Again, each situation is different.
One recent case out of the Eastern District of Missouri involved a former police officer, James Daly, and (in part) a viral Halloween display. The facts of this case are extensive; but, in summary, concurrent with some internal tensions in his department, Daly reported he was having conflicts with his neighbors. The neighbor conflicts involved, among other things, a Facebook post with a photo of Daly's yard in October 2019, decorated as a cemetery for Halloween, depicting a crucifix with the epitaph “Here lies Michael Brown, a fat ghetto clown.” The post went viral, protests arose and an internal investigation ensued. Daly was placed on administrative leave while the internal investigation was conducted. Ultimately, Daly was terminated for conduct unbecoming of an officer and for lying to investigators. He subsequently filed suit for the hostile work environment and violation of his civil rights regarding his First Amendment right to free speech and expression for the Halloween display. The federal court dismissed his claims because he was terminated for legitimate reasons other than the Halloween display. And, the Court also noted, that even if he was terminated because of the Halloween display, his termination was warranted and did not violate his right to free speech and expression. See, Daly v. City of De Soto, Missouri, 691 F. Supp. 3d 1023 (E.D. Mo. 2023), aff'd sub nom. Daly v. City of DeSoto, Missouri, No. 23-3223, 2024 WL 3193934 (8th Cir. June 27, 2024).
Halloween should be filled with candy and fun. But, if a situation arises that creates more of a trick than a treat, Bricker Graydon’s Labor & Employment attorneys are here to assist!
