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
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
· 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
· 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.