What Off-Duty Conduct or Activity is Protected?

Could this happen to you?  More and more individuals who participated in the January 6 assault on the U.S. Capitol are being publicly identified in the news and on social media.  Those seeking to expose these individuals often seek out and target rioters’ employers on social media, publicly calling out employers for the termination of employees based on their conduct on January 6.  Employers may be faced with employees who have been arrested, charged with a crime, or incarcerated as a result of their participation in unlawful activity.

Employers may have a legitimate interest in regulating what employees are doing, saying, and posting on social media while off the clock.  Certain actions and activities, such as those of the individuals advocating violence and unlawfully entering or occupying the U.S. Capitol, can seriously damage the employer’s brand and put the employer at risk of liability in the case of an employee who is now known to have engaged in violent, threatening, or criminal behavior.

The First Amendment restricts government actors from prohibiting an individual’s free speech or expression, or to assemble.  It does not restrict private employers from defining what is and is not acceptable for employees to say, post on social media, or publicly participate in under the watch of the media.  Federal law does restrict employers from taking adverse action against employees for certain conduct such as organizing, discussing their wages or other terms of employment, or taking other action in an attempt to effect change or end unfair working conditions.  And, most notably in light of the events of the past week, some states have laws prohibiting employers from discriminating against employees on the basis of political affiliation or off duty activity. 

While all U.S. employers are prohibited from banning employees from organizing and demonstrating for mutual aid, or to end unfair working conditions, and employers in some states are prohibited from banning employees for expressing political beliefs or participating in lawful mass protests or demonstrations off duty, no employer is prohibited from taking action against an employee for breaking the law.  In a state that protects lawful off duty conduct, an employer could not terminate an employee who stood peacefully on the Capitol steps, even if the employer strongly felt that the day’s activities were disgraceful.  In all states, an employer could terminate an employee who was seen or recorded breaking a window or defacing federal property, for example.  In states that do not protect political views or lawful activity, a private employer could terminate an employee for making a social media page supporting President Trump or agreeing that the election was rigged.  Extreme caution is required, however, as whether a termination for this reason is lawful will depend on the law in the employer’s jurisdiction. 

Enacting policies and determining whether to take adverse action against an employee for off duty activity can be a minefield.  Is an employer within its rights to terminate an employee who is observed breaking a window or unlawfully entering a building? Yes.  Can you discipline an employee for tweeting a picture of himself listening to President Trump’s speech at the White House?  In some cities and states, no.  Is it okay to demote a manager who likes another employee’s Facebook post stating that laws should be changed to protect employees from your unfair labor practices?  This could be asking for trouble. 

Not sure if you are compliant with this subject matter or other critically important HR and legal compliance issues? Take our free HR Compliance Survey and find out: https://myhrcounsel.com/compliance-survey/ The attorneys at myHRcounsel are well-versed in federal labor law and state-specific off-duty conduct laws and have the experience and knowledge to advise on all situations involving employees’ political activity and off duty conduct.