This post was updated in February 2020
In the social media age, privacy, it seems, is a luxury we can’t always afford when out in public. Almost everyone has access to the internet with the touch of a finger, so the pressure for employees to monitor their behavior, even outside of work, is higher than ever. You never know when you’ll end up the subject of a Twitter, Facebook, Instagram or Snapchat post, even if you don’t have any of those accounts yourself.
But what exact protections do you have? If you do something that isn’t illegal but is explicitly against your company guidelines, could you be fired if that gets back to your superiors? The line between our personal and professional lives is extremely thin, so it’s important to know the details behind this hot-issue question.
The first thing you need to understand is that there are certain privacy laws in place. The problem is that these laws vary from state to state. Most of these prohibit the employer from intruding on their employees’ lives outside of work. Some states, like California, take this one step further and completely restrict employers from taking action against employees based on actions taken outside of work.
Others simply make it illegal for employers to intrude unreasonably into the personal lives of employees. For example, employers never have the right to enter an employee’s house or inquire about personal issues such as drinking habits. But what happens when information about an employees life crosses an employers desk without them deliberately intruding to find it?
We’d all like to think that our personal lives are our own and we can, within reason, live them however we choose. This is especially true if the activities we do in our personal lives have no impact on our work ethic. However, in addition to privacy laws protecting employees are laws giving employers certain powers to manage those employees. At-will Employment laws, in particular, allow employers to terminate employees for any reason, provided it isn’t “unlawful”.
What constitutes an “unlawful” reason? Well, that question is the biggest reason there is so much gray area with this issue. Federal law clearly outlines many factors that would be unlawful reasons to fire someone such as race, religion, gender, national origin, pregnancy, disability, age, citizenship status, and many more. It also forbids making employment decisions based on whether an employee has taken time off under the Family Medical Leave Act, made a complaint to OSHA, filed a complaint about sexual harassment, or any other such lawful decision.
That being said, in most states employees can very easily get fired for activities they do outside of work. For example: Given the political climate, a Twitter account released a statement that they were planning on revealing the identities of people who marched in favor of white nationalism with the hope that their employers would take direct action against them. Ultimately, it is up to the employers on whether they fire the employees, but it is within their power.
Or if an employee makes a politically incorrect statement on their personal social media account. Perhaps it’s a phrase or joke taken out of context, or aligns itself with an ideology the employer doesn’t agree with. These situations are also grey areas, and up to the employers as to how they want to proceed.
Virtually every company has a detailed list of company policies established in order to set standards about how employees should behave. This offers some protection to employers so they can justify the termination of an employee if they come back at them with a complaint from OSHA. Even still, it’s important for employers to consider all laws and policies that protect the employee. HR professionals should handle these situations on a case-by-case basis because of all the variables that can come into effect.
Having universal policies that govern all “questionable” off-duty behaviors is impractical and could be perceived as micromanagement by employees. The Society for Human Resource Management (SHRM) suggests HR professionals ask two questions when deciding whether to terminate employees for off-duty behavior:
Are there any special legal factors at issue in this case?
What effect, if any, does the off-duty behavior have on the employee’s job performance, the workplace or the company’s image?
In these situations, there is a fine line that varies with the facts of each individual case. The more off-duty behavior negatively affects workplace performance or the business as a whole, the more valid termination becomes as an option—provided no special legal protection exists. Termination is justified when off-duty conduct contradicts a company’s mission, products, services, or public image.
At the end of the day, employees represent a company’s values and purpose, and in the long run, their behavior can really affect the organization’s reputation. That being said, there is no clear-cut answer that will be applicable to every situation, so make sure you tread carefully whenever a situation like this comes up and make sure you consider everything covered above before making any decisions.