In the days following the violent rallies in Charlottesville, Virginia, several rally participants found themselves fired from their jobs for their participation. This has many employers wondering if they can fire an employee based on what they do off the clock. The answer depends on many factors, including the individual circumstances, the context of the activity in question, and which state the employee is in.
Before we explore the broader concept of off-duty conduct, a word about freedom of speech. The First Amendment specifically prevents the government from interfering with freedom of speech, but it does not guarantee that right in private settings, including private workplaces. So, an employee’s participation in controversial off-duty conduct is not automatically protected under the guise of freedom of speech.
That said, there are federal laws that may protect the employee depending on the nature and context of the speech. For example, the National Labor Relations Act protects an employee’s right to speak out against and discuss terms and conditions of employment (including discussing their salary with others), as well as other actions when done in an effort to raise awareness of and improve workplace conditions.
Even if there is not a law protecting the specific off-duty activity, if the activity is grounded in a protected status, such as age, race, sex, religion, disability, etc., then taking action against the employee could also violate the law. For example, suppose an employee is participating in a rally supporting his religion or a religious belief. The rally gets violent, the local news shows up where the employee speaks out on camera about his right to religious expression. As a result of what the employer views as negative publicity, the employee is fired. The employee may be able to demonstrate that his employer took action against him based on his religion, which would violate civil rights laws that protect employees from discrimination based on their protected status.
Of course, it’s a little more complicated than that, but the takeaway is that even in private settings where the First Amendment is not guaranteed, employers should exercise caution before disciplining an employee based solely on their expression of personal beliefs, even if the employer feels the expression reflects negatively on the business.
An employer must also consider whether any state law factors in, as some states do have protections for employees’ lawful off-duty conduct. They range from lifestyle choices, such as smoking, to broader activities, like political expression. A small sample of these laws is below:
· States that have broad protections for employees for any lawful conduct during nonworking time and away from the employer’s premises include California, Colorado, New York, and North Dakota.
· States that protect employees’ legal use of consumable products, such as tobacco or alcohol, away from work include Illinois, Minnesota, Nevada, New York, North Carolina, and Tennessee. Kentucky, New Jersey, New Mexico, Oklahoma, and Wyoming specifically protect off-duty tobacco use.
· California, Louisiana, and South Carolina are among the states that protect employees based on their political activity or opinions. A few states, including Connecticut, New York, and Wyoming, protect an employee’s right to run for public office, and some states even require employers to grant a leave of absence so the employee may serve.
· Florida, Louisiana, and Texas prohibit employers from requiring employees to patronize certain businesses for personal purchases.
· Numerous states, and the list is growing, have enacted “medical marijuana” laws, although employers are generally not required to allow employees to possess or use the drug during working time.
It is possible that an employee’s off-duty conduct violates internal company policy. Barring any law that protects the conduct in question, this may provide employers more leeway in discipline decisions, particularly if the off-duty conduct impacts coworkers and creates problems in the workplace. Where this is most likely to occur (and more likely to make discipline or termination reasonable) is if the off-duty conduct violates the company’s harassment or discrimination policies. This is likely the context in which participants of the white supremacist rally in Charlottesville were fired. Their conduct was rooted in the notion of race, and whether directly or indirectly, was aimed at others based on their protected status of race. There is little question that such a public and violent display against others because of their race would violate any company’s anti-discrimination policies and would create considerable hostility in the workplace, particularly among employees in the protected status of race. Additionally, some participants displayed swastikas, and while their message wasn’t necessarily intended to be anti-Semitic, this would certainly have a chilling effect on Jewish employees, and harassment laws make it clear that it’s not the intent but the impact that carries weight. So, while the Charlottesville example is extreme, it illustrates well when an employer may be right, and may even have an obligation, to take action.
The bottom line is that when it comes to an employee’s off-duty conduct, there is no blanket “yes or no” to whether they can be disciplined or terminated for the conduct. Rather, the totality of the facts, including any laws that may be in play, and the conduct’s impact on the workplace must be considered within the context of the employee and the specific activity. The reality is that some behavior, no matter how egregious, may be protected under the law, and even if not explicitly so, may not be worth the risk of termination.
By Claudia St. John, President – Affinity HR Group Inc.
