HR Tip: Can employers terminate employees for off duty activities?

Following the violence in Charlottesville, Virginia, there was an active social media campaign to identify protesters and encourage employers to terminate their employment. While the legal consensus seems to be that private employers have the right to take action against employees for expressing views that could create a hostile work environment or damage the employer's reputation, even if the activities happened off the clock, many caution to decide on a case by case basis.

There are no federal laws that would be violated if a worker were fired by a private employer. The First Amendment's protections of freedom of speech apply only to the government, not to private employers. However, some states, such as California, Colorado, New York and North Dakota, have laws that prohibit from discriminating against employees for engaging in lawful conduct when they are off duty. In such states, there is a greater burden on the employer to justify the termination. And employers must be careful not to run afoul of the National Labor Relations Act by punishing employees who may be commenting about the terms and conditions of their employment.

In the era of social media, pictures and videos from rallies and protests go viral instantly. If a manager is using hateful speech and acts on it at work, employees can feel threatened and belittled and harassment and discrimination suits could be harder to defend.

Today, many feel more emboldened about what they can say and do and employees may not understand what they do off the job can impact their employment. For this reason, it is critical for employers to review their social media, employment or personnel policies, and other relevant policies to articulate their expectations in these situations.

Deciding whether to take action against an employee for off-duty conduct can be a slippery slope and it's best to consult with their legal counsel before making decisions.