You’ve probably seen the viral video of the white woman calling the police on a black man birding in Central Park who asked her to leash her dog (in accordance with park rules). The woman’s employer quickly fired her, issuing a public statement that it had done so after an internal review of the incident and that it does “not tolerate racism of any kind.”
Here, the employer was able to link the woman’s off-duty conduct to the company’s policies prohibiting discrimination and valuing inclusion. In addition, her racist conduct was captured on video. Not all situations are as clear cut.
Whether you’re an employer or an employee, you might be wondering whether firing people for their off-duty conduct or for expressing their opinions on social media is legal. The answer is complicated.
Check the Contract
Some employees have individual employment agreements with their employers; others have the protection of a union contract. These contracts may include language that says a worker can be fired only for just cause and specifically define what that means.
These contracts might also set out a particular process that must be followed before a worker can be disciplined or fired.
An employer should review any applicable contract carefully to see if it limits discipline in the situation at hand, and, of course, employees should review their contracts before engaging in behavior or speech that could be seen as problematic.
What about the First Amendment?
Actually, the First Amendment doesn’t apply to private employers. It prohibits the government from interfering in the free exercise of speech and religion.
A few states, including California and New York, have laws prohibiting private employers from firing employees for legal, off-duty speech or conduct that doesn’t conflict with the employer’s business-related interests.
It is, however, relatively easy for most employers to show that hate speech interferes with their business interests. For example, consumers may threaten to boycott the business unless the employee is fired.
The Right to Engage in Concerted Activities
National Labor Relations Board (NLRB) rules cover most employees in the private sector – even nonunion businesses. Employees have the right to engage in concerted activities for their “mutual aid or protection,” including, for example, group protests or online complaints about workplace issues.
According to the NLRB website, a “single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.”
The NLRB adds that “you can lose protection by saying or doing something egregiously offensive or knowingly and maliciously false, or by publicly disparaging your employer’s products or services without relating your complaints to any labor controversy.”
This means that while workers are protected for posts and activities related to good faith complaints about working conditions (including workplace safety), they still must be careful what they say.
Whistleblower Protection
The federal government and many states have laws protecting employees from retaliation for whistleblowing. Depending on the law at issue, whistleblowing is defined differently, but generally speaking, it refers to someone disclosing their good faith belief that their employer is violating the law.
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Employers and employees alike should be concerned with social media posts and conduct that is racist, sexist, violent, or otherwise inconsistent with the employer’s policies.
Whether you’re an employer or an employee, please feel free to contact us if you have any questions about protection for off-duty conduct and speech, or if as an employer, you need help drafting appropriate policies.
Photo by Priscilla Du Preez on Unsplash
