Could a moment of truth get you fired?
A new reality show could win you $500,000 -- or it could get you a pink slip, say employment lawyers.
NEW YORK (Fortune) -- The new, much-hyped Fox reality show "Moment of Truth" encourages contestants to reveal bad behavior in exchange for a cool half million bucks. Those winnings could become a severance check, though, as participants might return to their jobs only to hear a catchphrase from another reality show:
In case you're not one of the 23 million Americans who tuned into its premiere last week ("Moment of Truth" airs Wednesdays after the mega-hit "American Idol"), the hour-long show subjects contestants to 21 increasingly-embarrassing questions, all of which they have answered beforehand while strapped to a lie detector machine.
The questions range from the innocuous, do-you-put-the-toilet-seat-up variety, to the damning, like whether you lust for extramarital sex or have a gambling problem. If you're caught in a lie, based on your previous replies, you sacrifice the dough, which can total $500,000 if you "win."
Naturally, questions veer into the workplace, like whether you've ever touched a co-worker inappropriately. (The questionnaire that potential contestants fill out asks about relationships with their bosses and co-workers, and the managers of some contestants have been shown in the audience.) It's those types of questions that could destroy someone's career.
In the first episode, a preening personal trainer named Ty was asked if he ever touched female clients more than what was necessary. He said no, but the polygraph contradicted him. Ty was followed by a contestant who admitted to looking through co-workers' desks.
Could these people be denied promotions, demoted or even fired for behavior on the job or off that's considered deviant? Perhaps, employment lawyers say. "What a person discloses is fair game for an employer to use, particularly with an at-will employee, and most people who work are at-will employees," says Howard Wilgoren, an employment lawyer in Boston. (An at-will employee, unlike, say, a union worker, can be dismissed at any point for cause or no cause at all, and is also equally free to quit.)
Adds Barbara Roth, a New York-based partner at law firm Hogan & Hartson who represents employers: "It would be neither illegal nor unfair for an employer to act on information that is lawfully considered about an employee in making an employment decision."
For employees who have an employment agreement, (including unionized workers) the employer would need to show the disclosure had some adverse impact on the company, Wilgoren says. (An example of a case where the employer would need to prove adverse impact on its operation would be a police officer who is fired for posing in Playboy.)
But employers are highly unlikely to take action solely on a televised admission - or a denial that's refuted by a polygraph, says Matt Gilligan, a partner at Alston & Bird in Atlanta. For starters, polygraphs are inconsistent, and there is a federal law - the Employee Polygraph Protection Act - that prohibits most private employers from using lie detector tests on the job, except in rare cases like when the employer suspects the employee was involved in theft or embezzlement.
Even though the employer is not conducting the polygraph in the case of "Moment of Truth," it would want to adhere to the policies behind these laws.
And regardless of what someone admits or denies on TV, companies would want to conduct their own investigation into the on-the-job wrongdoing, by interviewing co-workers and clients, scouring emails, and the like.
As for off-duty misconduct, employers are generally loath to discipline employees (at-will or not) for such behavior, unless those actions are particularly egregious or have a clear connection to the workplace or the employee's duties. "Lawyers representing employees are always seeking legal theories to attack outrageous unfair terminations for off-duty behavior or off-duty revelations of private matters unrelated to job performance," says Paul Tobias, senior partner at Cincinnati-based Tobias, Kraus & Torchia, who specializes in wrongful termination suits.
That said, employers could be compelled to act based on a common law precept called "negligent supervision," which holds that employers are obligated to take steps if they foresee dangerous conduct in the future, Gilligan says.
The issue gets murkier when you look at questions about contestants' personal prejudices. One contestant was asked if he was disgusted by obese people. What if that contestant managed several fat employees? It's not misconduct per se, but it's certainly a recipe for a toxic workplace.
Employers also need to be wary of using sensitive personal information revealed on a reality show, such as sexual orientation or disability, in the hiring process. Depending on the laws in that particular state, that could lead to claims of discrimination.
So far, at least, the issue of workplace consequences is hypothetical - trainer Ty is self-employed. (Although we assume his female clients might be looking elsewhere for a rubdown.)
In any event, if "Moment of Truth" stays on the air, labor and employment lawyers hungry for new clients might want to tune in.
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