On March 20, 2023, following an eight-game suspension, Memphis Grizzlies’ two-time All-Star point guard, Ja Morant, returned to play in a NBA basketball game against the Houston Rockets. Grizzlies’ fans welcomed back Morant with cheers and a standing ovation when Morant came off the bench after missing a total of nine games, eight of which were due to an NBA suspension.
Morant was suspended after streaming a video from his Instagram Live account on March 4, 2023, in which he appeared to display a handgun at a nightclub in the Denver area. Morant streamed the video early Saturday morning, hours after the Grizzlies lost to the Denver Nuggets.
Shortly thereafter, the Glendale Police Department was alerted to the incident when the video quickly spread across social media, prompting the police to open an investigation.
On March 8, the police announced there was not enough evidence to charge Morant with a crime and closed its investigation. The police determined through its investigation that it did not receive calls regarding any weapons at the night club, and there were no disturbances reported by any witnesses or complainants.
Although Morant did not face criminal charges, the NBA conducted an internal investigation and determined his conduct was detrimental to the league and irresponsible, suspending him on March 15, 2023, for 8 games without pay for misconduct. After his suspension, Morant acknowledged he struggled with coping with stress and anxiety and sought professional counseling at a Florida facility.
Since then, Morant has expressed remorse for his behavior, admitted his self-improvement was an ongoing process, and expressed appreciation and gratitude for the support.
Key Takeaways for Employers
What are some important takeaways employers should keep in mind when handling an employee’s off-duty misconduct? Employers should consider the following:
- Impact of Off-Duty Misconduct on Job Duties. Generally speaking, employers are not able to regulate an employee’s off-duty conduct; however, exceptions can exist when there is some relationship between the misconduct and the business. When it comes to the activities engaged in outside of work, employers should determine whether any off-duty misconduct impacts the employee’s job duties or the employer’s business.
- Duty to Accommodate/Engage in the Interactive Process. After the NBA discovered Morant’s conduct, he expressed the need to seek help in dealing with anxiety and coping with stress. Once an employer discovers the off-duty misconduct, would certain legal obligations such as the duty to engage in the interactive process apply? Depending on the situation and any specific requests of the employee, employers should be mindful that certain legal obligations, such as the duty to accommodate or the duty to engage in the interactive process may be triggered.
- Concerted Activities. Employees sometimes post negative comments about their employer on social media sites. Before taking any adverse action against the employee, employers should consider whether the employee has engaged in protected concerted activity under the National Labor Relations Act (NLRA). Many employers mistakenly believe the NLRA only applies to unionized employees. However, the NLRA creates rights for employees – even non-union employees – to talk or discuss their working conditions. When reviewing communication between employees, employers should consider whether the employee has in fact engaged in protected concerted activity.
- Potential Discrimination Claims. Employers that reject applicants or terminate employees who have been arrested or charged with a crime should be mindful of potential discrimination claims. Employers should keep in mind that solely relying on criminal history when taking an adverse employment action may potentially have a disparate impact on a protected group of individuals. Oftentimes, policies that appear to be neutral on the surface can have a disproportionate impact on protected groups.
Erica Johnson is an associate at FordHarrison.
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