NBAKudos to NBA Commissioner Adam Silver, who, like a true HR professional, fined Los Angeles Clippers owner Donald Sterling $2.5 million and banned Sterling for life from the NBA. The punishment came last week on the heels of a leaked audio recording in which Sterling is heard scolding V. Stiviano, Sterling’s “personal assistant” (code name for “girlfriend”?), because she posted on Instagram a picture of herself with former NBA star Magic Johnson.

Sterling’s tirade had nothing to do with any rivalry between the Los Angeles Lakers (for whom Magic Johnson played) and the Clippers. Unfortunately, it was all about race. Sterling did not want Stiviano appearing in public (in a picture on Instagram or at a Clippers game) with a black man. You can hear the audio here, but, fair warning, it’s highly offensive.

While there may be few similarities between the NBA and a “normal” workplace, the issue that Commissioner Silver faced is not foreign to HR professionals: Whether, or to what extent, an employee should be disciplined for private, off-duty conduct.

Commissioner Silver decided that Sterling’s private (so he thought) conversation warranted a lifetime ban (the equivalent of an employee termination) because of the tremendously negative impact the conversation had, and would continue to have, on the Clippers organization, the entire NBA, and NBA fans.

So, what factors should be taken into consideration when deciding whether, or to what extent, to discipline an employee for private, off-duty conduct? Here are my top 5 (many or all of which undoubtedly were considered by Commissioner Silver):

  1. The identity of the offender. Is the employee the company CEO, a mid-level supervisor, or a low-level associate? Rank matters. High-ranking employees can (and should) be expected to lead by example. Off-duty conduct carried out by high-ranking employees also may have a greater impact on business operations, employee morale, and corporate reputation.
  2. The nature of the offense. Was the employee charged with a misdemeanor because he was caught-up in a bar room brawl on Saturday night? Or, did the employee rob a local gas station at gunpoint? Does the contemplated penalty (termination) fit the offense?
  3. The nexus between the offense and the employee’s job. Is the nature of the off-duty conduct related in any way to the employee’s job duties? For example, was your in-house accountant convicted of bank fraud? The closer the nexus, the stronger the argument in favor of discipline or termination.
  4. Likelihood of repeat performance. Is the employee’s off-duty conduct a fluke? Is it entirely out of character for the employee, such that the offense can be overlooked with no real harm to business operations? Or, does the employee (like Sterling) have a history that simply can’t be ignored?
  5. Treatment of others. Have you disciplined others who have engaged in similar off-duty conduct? As all HR professionals know, consistency in discipline may decrease the risk of potential liability.

Of course, this is not a complete list of relevant factors; the circumstances of every situation are unique. In every case, HR professionals should do their homework, gather the facts (and, if you’re looking at potential criminal conduct, don’t rely upon the fact that an arrest may have been made), and make a well-reasoned decision based upon the potential impact of the off-duty conduct on corporate operations.

Keep in mind that some states restrict an employer’s right to take personnel action based upon off-duty conduct. Also, unionized employers and public employers may face greater restrictions when it comes to discipline for off-duty conduct. All employers should be aware of the restrictions and risks before taking personnel action based upon employee off-duty conduct.