Stories of employee off-duty conduct seem to surface every week. Last month, a marketing executive was photographed making an obscene gesture toward a presidential motorcade. The photo quickly went viral on social media and other outlets. After she identified herself and posted a copy of the photo, she was fired, with her employer citing its social media policy. In August, participants in the neo-Nazi white supremacist rally were quickly identified in photos that circulated online, and their employers were confronted with calls for the employees’ termination.
Before social media, employee off-duty conduct was generally unknown to an employer, even if that conduct involved violence or unlawful conduct. Now, employers are regularly alerted of its employees’ activities outside the office. As a result, employers are often faced with a difficult decision of whether or not it can, or should, discipline an employee for off-duty conduct.
Here are three factors employers should consider when it learns of the conduct:
1. Was the conduct protected by state or federal law?
State and federal laws provide protection for public and private employees’ off-duty conduct if they are engaging in certain types of protected speech. Public sector employees are primarily afforded this protection under the free speech clauses of state and federal constitutions, but public and private sector employees also have protection under a myriad of state and federal laws. For example, the National Labor Relations Act allows private sector, non-supervisory employees to engage in protected concerted activity related to wages or working conditions. This protection has been extended to social media conversations in a number of instances. Title VII and similar state statutes protect employees who oppose violations of those statutes, which can include opposition expressed on social media.
2. Is there a state law which protects or limits off-duty conduct?
Michigan does not have a specific state law that protects employee off-duty activities and behavior. However, some states like California, Colorado, New York, Nevada and North Dakota, have laws which protect the legal off-duty conduct of employees. Employers in those states may be prevented from disciplining or terminating an employee for off-duty conduct that was legal, even if the message of the conduct was contrary to the values of the employer.
3. Was the employee protected by an employee handbook or Collective Bargaining Agreement?
Employees are generally considered “at-will” and are subject to termination for any reason that is not illegal. Illegal terminations include terminations based on a protected characteristic such as race, gender, religion, disability or age, retaliatory terminations in violation of federal or state statutes or public policy, and terminations in violation of public sector employee free speech rights.
However, some employers have limited the at-will nature of employment through their established policies and/or through collective bargaining agreements. In these cases, employers must consider and apply these documents when determining whether the off-duty conduct warrants discipline or termination of employment.
Contributed by Ellen E. Hoeppner and Robert N. Dare of Clark Hill.
Join us for the “Terminating Employees for Off-Duty Conduct” webinar on December 14, 2017 with Ellen and Robert.