March 1, 2019

Going Viral: Can Employees Be Disciplined for Off-Duty Conduct?

by Brigid E. Heid, Eastman & Smith Ltd.

Technology, social media and ubiquitous camera phones have blurred the line between work life and private life. Increasingly, employers are faced with the need to consider employees’ off-duty conduct, even when the conduct is not directly related to their role with the company.

Take, for example:

  • An employee was fired from the marketing team at Akima, LLC after she was photographed making an obscene gesture at the presidential motorcade and the photo went viral;
  • A white woman dubbed #PermitPatty was fired after she was videotaped calling the police to complain about a young African American girl who was selling bottles of water on the sidewalk in front of the woman’s apartment building; and
  • A white man was fired from his sales position after he was caught on video that later went viral, challenging a black family’s right to use a private, gated pool. The man was serving as the pool chairman, called the police, and refused to apologize even after the police confirmed the family’s right to access the pool.

These scenarios, though extreme, illustrate that employers have the right to enforce their policies and protect their business interests even when an employee is not working at the time. If an employee would have been disciplined for engaging in the same or similar behavior while at work, then the employee likely can be disciplined for engaging in the behavior after hours. That is not to say that employers can act with impunity. Rather, employers must consider that the employee may have legal protections from discipline under a written contract, a collective bargaining agreement, the law or constitution (for public employees).

Before taking disciplinary action for off-duty conduct, employers should evaluate:

  • The nature of the conduct: Does the conduct violate any company policies, e.g., against discrimination and harassment, the code of conduct, electronic communications or remote work? Does the conduct breach any contract with the company? If proven to be true, is it illegal?
  • The employee’s role in the conduct: Was the employee acting as a private citizen or as a representative of the company?
  • Who knows about the conduct: Has it gone viral? What is its shelf-life?
  • How the employer learned of the conduct: Was it voluntarily disclosed? Was it coerced? Was it learned through lawful monitoring or public access?
  • The potential impact on the business: Could the publicity or knowledge of the conduct harm the company’s reputation, employee morale, sales, client relations or result in legal claims?
  • Legal protections the employee may have: Does a contractual, legal or constitutional protection apply?
  • Just as an employer can discipline an hourly (non-exempt) employee for working off-the-clock in violation of policy and wage and hour laws, an employer can discipline an employee for off-duty conduct that violates other company policies or threatens business interests. Employers should consider all of the facts and legal consequences before disciplining an employee for their off-duty behavior.

Heid
If an employee would have been disciplined for engaging in the same or similar behavior while at work, then the employee likely can be disciplined for engaging in the behavior after hours.