Employment Law: “Am I My Brother’s Keeper?”

By Chuck Onofry

and Dee Giles

Ohio State University football coach Urban Meyer is the latest collegiate coach to face discipline or possible termination, because he failed to promptly report “up the chain” alleged misconduct committed by one of his assistant coaches that was completely unrelated to his work performance.

Is it legal to discipline an employee for “not reporting” non-work related misconduct? Like most everything else in the law, “it depends.”

At least in Arizona, there are very few mandatory obligations to report suspected wrongdoing, outside of certain professionals’ responsibility to report suspected sexual abuse of a minor. Plus, in an at-will employment state like Arizona, you can terminate an employee for any
reason, as long as it is not a bad
reason, such as where the termination violates an Arizona statute or where the termination is in retaliation for refusing to violate some right protected by the Arizona Constitution or a statute.

Thus, termination for not reporting certain conduct would likely have to be a contracted-for obligation. Morality clauses have been around for a long time, especially in contracts with executives and with individuals in the sports and entertainment world. But, historically, those provisions have not extended to reporting the bad acts of other people committed outside the workplace.

But times have changed, and nothing says a contract cannot be drafted to create that obligation, which is what happened in Coach Meyer’s case. One of the provisions in his contract required he immediately report “any known violations” of Ohio State’s sexual misconduct policy, which included but was not limited to “intimate violence and stalking that involve any student, faculty, or staff …”

The language in Meyer’s contract cast a “wide net” — some might say unfairly so, because it allows termination for cause without finding he knowingly ignored a problem, and, if invoked, would have relieved the university from paying Meyer his $7.6 million annual salary.

But this type of accountability has gained momentum in recent years, especially throughout high schools, colleges and universities, and it is likely these provisions will show up in more contracts as the public becomes more socially aware of past abuses.

Employer Representationat Schneider & Onofry