If you are an at-will employee, you could be terminated based on what you do outside of work.
Recently, employees across the nation have received the unwelcome news that they have lost their jobs based on their activities outside of work. They may have attended a political rally, made inflammatory comments on social media, or even written an offensive book. These employees assumed that because they were acting on their own time, their employers could not terminate their employment. However, any employee who is considered “at-will” — that is, he or she is not in a union and does not have a contract — can be terminated for any non-illegal reason. This often includes what an employee does outside of work.
The question of whether an employee can be terminated for his or her outside of work activities came to light once again after the “Unite the Right” rally in Charlottesville, Virginia, which quickly devolved into violence. Multiple participants in the rally were identified online, and subsequently were fired by their employers for their actions, which may have included shouting anti-Semitic and white supremacist slogans, carrying torches and participating in violence. Because these workers were at-will employees, their bosses had the right to terminate their employment for this conduct, which may have had a negative impact on their business. As long as the basis for termination is not illegal (that is, it is not discriminatory), then these employers have a right to fire their employees for behavior that they find distasteful or unprofessional — even if it happens off the clock.
In the era of social media, this situation arises more frequently based on employees’ posts and comments on Facebook, Twitter and other sites. Employees may take to social media to complain about their jobs, coworkers, customers, or supervisors. They may also make comments or posts that are entirely unrelated to their jobs, but are nevertheless offensive, such as racially inflammatory remarks on a public Facebook page. In those situations, if an employer is alerted to the posts or comments, an at-will employee could be terminated for his or her social media use — even if it does not occur on company time.
There are limits on what an employer can base its employment decisions on, particularly as it relates to conduct outside of work. For example, some comments and communications made by employees cannot be grounds for termination or discipline because it is considered protected speech. If an employee is participating in union organizing activities, that would be protected speech, and an employer could not use those comments or activities as a basis for termination. An employer also cannot have an employee followed to investigate his or her outside of work activities, as this could be considered an invasion of privacy. The more typical case (particularly in 2017) is that an employee’s outside activities are brought to the attention of an employer, and disciplinary action is taken as a result.
If you have been terminated for activities that you have engaged in when you are not at work, you should consult with an experienced employment attorney immediately to discuss your rights and options. At PLBH, our skilled employment attorneys have more than forty years of experience helping employees who have been wrongfully terminated. Contact us today at (800) 435-7542 or info@plblaw.com to learn more about how we can help you.