As we grapple with the follow-up to the January 6 events at our Nation’s Capital, we need to consider how much an employer has a right to be concerned about or otherwise monitor an employee’s behavior outside of work. Of course, most employers do not oversee or generally monitor their employees’ behavior when they are not on the job. Social media does that for them Just think about Central Park Karen who was terminated by her employer for the incidents that happened and were recorded in the Summer of 2020.
Do employees need to watch their behavior outside of the workplace?
From the employee’s perspective, the question is how much does the employee need to watch their Ps and Qs while on their own time. Generally, that an employee can be fired for inappropriate behavior that occurs on an employee’s personal time. Employers are not required to respect an employee’s First Amendment right to free speech. An employee is an agent of the employer, and the behavior of the employee can be seen to reflect upon the employer. This reflection allows the employer to make termination decisions to protect its own reputation. Many professionals now consider employee behavior a matter of enterprise risk management. And social media platforms make the risk concerns even worse. From an employer’s (or potential employer’s) perspective, some social media activity is cringe-worthy and keeps HR departments up at night. Social media campaigns have been launched against many brands, retailers, products, etc. based on the behavior or statements of its employees. Just last month, calls went out to boycott Walmart for statements from its own social media team (now short one member) on Twitter. And terminations for behavior is not limited to for-profit consumer facing businesses. Nonprofit Organizations and government agencies face the dilemma as well, and have to deal with terminating employees whose behavior threatens the mission of the organization or its stakeholders.
And being terminated for behavior outside of work (unless that behavior falls under one or more of the protected “classes”) does not give rise to a claim of discrimination – there is “no free to be me” claim that protects employees. The types of discrimination currently recognized under law include: age; disability; sexual orientation; status as a parent; religion; national origin; pregnancy; sexual harassment; race, color or sex; and reprisal and/or retaliation. So an employer cannot terminate (or fail to hire or promote someone) someone who falls into one of the protected classes for the reason of that protected class. Most employees in the country work “at will,” which means absent discrimination, they can be terminated (and quit) at will – no reason required.