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Trick-or-Treating: Don’t Let Halloween Festivities Cause Employment Problems | Bricker Graydon LLP

Trick-or-Treating: Don’t Let Halloween Festivities Cause Employment Problems | Bricker Graydon LLP

Halloween isn’t just trick-or-treating. Adults and kids 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 act like a kid again. Similar to inappropriate behavior at a holiday party, employees’ activities on All Hallows Eve can escalate like the undead. If an employee decides to toilet roll someone’s house or steal someone’s entire supply of candy and gets caught and made public on social media, they may be dealing with more of a trick than a treat at work.

Employers can take action to address inappropriate behavior, even if it occurs “after hours.” This is especially true when the behavior reflects negatively on the employer, violates company policy, or causes disruption to the workplace. For example, if Halloween night festivities result in an arrest for certain charges, this may be grounds for terminating the employee. As in most cases, there is no universal rule. However, many courts in Ohio have found that if an employer is reasonable in finding fault with the employee in his or her arrest, the employer may terminate the employee for cause regarding unemployment benefits.

What if a costume or Halloween stunt goes viral? Some viral photos or videos are positive; Who doesn’t love seeing dogs in costumes that look like Chucky running with a knife or a cowboy riding a horse? However, there are other photos and videos that are brought to the employer’s attention and may result in disciplinary action. Again, every situation is different.

A recent case in the Eastern District of Missouri involved former police officer James Daly and a (partially) viral Halloween stunt. The facts of this case are extensive; but in summary, simultaneously with some internal tensions in his own department, Daly reported conflicts with his neighbors. The neighbor clashes included, among other things, an October 2019 Facebook post with a photo of Daly’s yard decorated as a cemetery for Halloween, depicting a cross with the caption “Here lies a fat ghetto clown Michael Brown.” The post went viral, protests escalated and an internal investigation was launched. Daly has been placed on administrative leave while an internal investigation is conducted. Ultimately, Daly was terminated for conduct unbecoming a police officer and lying to investigators. He later sued for the hostile work environment and violation of his First Amendment civil rights to free speech and expression for the Halloween display. The federal court rejected his claims because he was terminated for legitimate reasons other than the Halloween show. The court also noted that even if his employment was terminated due to the Halloween demonstration, his termination was justified and did not violate his right to freedom of speech and expression. To see, Daly v. City of De Soto, Missouri691 F. Supp. 3d 1023 (ED Mo. 2023), I approved the sub nom. Daly v. City of DeSoto, Missouri23-3223, 2024 WL 3193934 (8th Cir. June 27, 2024).

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