Protests and social media posts: Is discipline for off-duty misconduct lawful?

Whether to discipline employees for off-duty conduct has always been a sticky issue. As protests and social media posts about social injustice increase, however, employers are examining anew their duties to respond to employees' off-duty conduct that may have an adverse impact on their business reputation or the enterprise itself. Here are some guidelines to consider when confronted with those kinds of issues.

Off-duty conduct generally off limits to employers

The states with off-duty conduct laws are California, Colorado, Illinois, Minnesota, Missouri, Nevada, New York, North Carolina, North Dakota, Tennessee, and Wisconsin. Therefore, if you are an employer from one of those states considering disciplining an employee for off-duty conduct of any kind, first review the applicable statute to make sure you comply with its dictates.

Even for states without such statutes, the general rule has been that an employee’s off-duty conduct, including making social media posts, is off-limits for employers unless there is a relationship between the conduct and their business. The tension is usually between the employee’s reasonable expectation of privacy and the employer’s interest in protecting its reputation.

‘It’s none of your business’

When employees have been discharged because of off-duty conduct, they make the simple argument  their activities are none of the employer’s business. If the conduct at issue can't be linked to the employer’s business, they may have a good point.