June 26, 2020
Off-Duty Conduct Can Lead to Adverse Employment Action, But Caution is Advised
by Kevin Griffith and Angelique Newcomb, Littler Mendelson
The past several months have seen a record number of Americans taking to the streets and to social media to protest state and local COVID-19 protocols and systemic racial injustice.
In some instances, that activism has seeped into the workplace with, for example, employees refusing to work due to real or perceived COVID-19 risks, or walking off the job to protest an employer’s support of law enforcement. In some situations, employees have been caught on video engaging in threats and acts of violence or property destruction or looting. Others have posted polarizing, offensive and sometimes hateful comments—including about their employers or co-workers—on social media.
Private sector, non-union employers in Ohio have great legal latitude to discipline or terminate employees for their conduct, both on and off duty. Criminal acts of violence or property destruction often result in immediate termination. But, in the current, highly charged climate, we advise caution, patience and flexibility before exercising such discretion, especially where an employee engages in non-violent forms of protest.
Legal claims for wrongful termination and retaliation are on the rise across the country. So, ask yourself: is it worth risking litigation to terminate an employee for being too afraid to come to work, for criticizing the employer on social media or for supporting a political or social movement the employer does not support even if the decision is lawful? In today’s world, where our collective distress over an invisible and deadly virus, police brutality and systemic racism are colliding at once, is the better approach to pause and listen before acting? An employee’s off-duty conduct may provide an opportunity for meaningful dialogue about an issue that is likely important to more than one employee. Similarly, showing tolerance for different social and political viewpoints can improve employee loyalty and retention over time. Today, even when off-duty conduct hits a nerve, employers likely will be better served to temper knee-jerk reactions and, instead, to have the hard conversations with their employees that may lead to real and lasting change, both at work and in the community.