In our age of electronic and social media, employers are increasingly faced with what to do about an employee who has acted monstrously outside of work. In the past, except for those present at the event, the larger world may never have been made aware of your employee’s rude drunken rant outside a nightclub, their racist tirade while shopping, or their assault on a person of another religion just walking down the street. Today, everyone has a smartphone, and when a drama unfolds, they are more than likely to use it. As an employer, you may be faced with a newscast featuring your employee participating in a Nazi demonstration or a post on your employee’s Facebook page filled with hate speech. If the act is not illegal, is it your business as an employer? Don’t your employees have a right to privacy outside the office? Can there be repercussions to firing the offender? The answer to all of these is, “It depends.”
Employment At-Will
Unless an employee works for the government, belongs to a union, or works in Montana, they are subject to employment at-will. That means with some exceptions, an employer can terminate employment at any time they like without even having a reason unless an employment contract specifies otherwise. So, if your employee is subject to employment at-will, has spouted hate speech on their Facebook page, and is subject to no other legal protection, you are free to terminate them for that reason, for no reason, or because you felt like it when you got up this morning. However, an employer cannot fire an employee for an illegal reason such as due to race, sex, age, nationality, religion, disability, or in retaliation for whistleblowing. And, of course, an employee might try to claim they were fired for such an illegal reason.
State Protections against Terminating Employment At-Will Employees for Behavior Outside of Work
Many states provide some protections against terminating employees for behavior outside of work even in at-will states. For example, under New York Labor Law § 201-d, an employer cannot terminate an employee for participation in political activities off the employer’s premises, legal recreational activities, and legal use of consumable products. However, these protections do not apply if the employee’s action creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary business interest, or interferes with official duties.
Similarly, Colorado Revised Statute § 24-34-4025 states, It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours. Like the New York law, this is subject to some exceptions. These include restrictions that relate to a bona fide employment requirement or are necessary to avoid a conflict of interest with any responsibilities to the employer. Other states that include general protections against terminating employment at-will employees include Illinois, Minnesota, Missouri, Montana, Nevada, New Mexico, North Dakota, and Wisconsin.
So, couldn’t an employee claim marching in a Nazi white supremacist demonstration is protected political activity under some state statutes and (by a stretch) the National Labor Relations Act? Here are the counterarguments:
- If a demonstration turns violent, there is no employment protection for people indulging in violent activities such as attacking counter-demonstrators.
- A difference may be drawn between political activity and hate speech.
- Even protective state laws generally will allow an employer to fire an at-will employee if keeping them on would create a conflict of interest or hurt the employer’s business. For example, forcing people to work next to someone who has threatened women or people of other races could be seen as creating a hostile work environment. Also, your customers may be reluctant to do business with your company if they must deal with such a person.
- There cannot be much expectation of privacy in the case of a public and widely publicized event.
State Protections Against Terminating Employment At-Will Employees for Tobacco Use
Let’s step back a moment to take a look at some similar but more specific protective state laws. In an effort to promote health, it has become a trend for some employers to avoid hiring employees who use tobacco. There are even employers who terminate employees who refuse to quit smoking even when the employees practice their vice outside of work. In answer to this, states such as Indiana passed laws to prohibit employers from forbidding their employees from smoking or discriminating against them if they do. Additional states with such tobacco laws include Kentucky, Louisiana, Maine, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, South Carolina, South Dakota, Wisconsin, and Wyoming.
To Fire or Not to Fire?
So how do you decide if you should fire your employee who behaved badly outside of work?
- Consider the impact on your employees of having to work with someone who has acted in the way in question, such as becoming notorious for a hate speech video, advocating white supremacy, or acting in an otherwise frightening manner.
- Consider the impact on your customers who may have to deal with this employee.
- Consider your company’s image and the impact on your business if this employee remains in your employ.
- Consider the law with the help of your legal counsel. Even in an employment at-will jurisdiction, a terminated employee may file some kind of claim against you even if it’s false. They could claim discrimination for race or religion, for example. Understand the possible fallout.
- Be proactive. Consider your company’s stance in various scenarios, and where appropriate, include your standards in your employee handbook.
