Can You Terminate Employees For Off-Duty Behavior?

I remember once when I was in high school and a senior girl got suspended for wearing her school uniform at a bar. Everyone was wondering why she got suspended since she was not drinking on the school campus, but the issue was that she was representing the high school, a Christian high school, and she was doing something illegal. This made me question, “Can employees get fired from their jobs for things they do outside of work?”. Last week I got an email in my inbox from HR Drive that I found it very interesting. I would like to share some of the key findings I got after doing some research.

It’s 2017 and most people, if not everyone, has a smartphone. Not only that, but they also use social media like Twitter, Facebook, Instagram, or Snapchat. It is hard to keep your daily life a secret. Even if you don’t post everything on your own social media accounts, someone else can do it on theirs. What is the first thing people do when there is a fight, a protest, or even when they are in trouble? The most common and accurate answer is that they take their phones out and take photos or record the situation. These pictures and videos later end up on social media, some even end up going viral. With that said, in the social media age, the line between personal and professional lives is extremely thin, if not invisible.

Privacy Laws

Employees have a right to privacy and depending on the state they work in, different laws may apply. There are a number of laws that prohibit employers from intruding into their employees’ private lives outside of work. Some states go beyond that, like California, where they have laws prohibiting employers from taking action against a worker based on anything they did outside of work. Even if a state doesn’t provide workers with a constitutional right to privacy, most of the time it is illegal for an employer to intrude unreasonably into the personal lives of their employees. This means that unless the employer has a valid reason to intrude, they cannot do so. Also, it is important to know that an employer can NEVER enter an employee’s home without consent, even if the employer believes that the employee has stolen company property. The same goes to asking personal questions to employees, such as their sex lives, drinking habits, etc.

At-Will Employment

Common sense would seem to indicate that an employer should not be able to fire an employee based on something done outside of work, right? Especially now that we know that there are laws that protect employees from this. Well, this is not always the case. There is another employment law that has been in effect for many years now, and that is employment at-will. This allows either the employee or the employer to accept a job, stay in a job, or even leave the job for any reason, as long as it is not an unlawful reason. So what determines what an “unlawful” reason is? 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. Likewise, federal law also prohibits 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.

With that said, yes, an employee can get fired for something they do outside of work.

With all the protests and commotion that has been going on in the recent months, a Twitter account announced that they were intending to reveal the identities of those who marched in favor of white nationalism in order to get those people fired from their jobs. As an employer, how would you respond to this if one of your own employees was included? More importantly, could you fire them?

Company Policies

A long time ago, employers learned that it was a wise idea to establish written policies that set standards on how employees should behave. Many employers expect that their employees will follow these policies, but in order for these policies to be followed, they need to be enforced and monitored. So, can an employer terminate someone for engaging in something that occurred outside of work even if it didn’t affect their performance at work?

Before making a decision, the employer must consider all laws and policies that protect the employee. The truth is that employees of a company represent its values and purpose, and in the long run, can affect the company’s reputation. So what is an HR professional to do when it comes down to it?

In these situations, there is a fine line that varies with the facts of each individual case. According to SHRM, having universal policies that govern all “questionable” off-duty behaviors is impractical and could be perceived as micromanagement by employees. SHRM suggests HR professionals to answer 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?

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. In the end, the best strategy is to have clear policies that outline off-duty conduct and any disciplinary procedures that are followed when those policies are violated.

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