For example, in June 2016, a Bank of America employee posted an expletive-filled racist rant on her Facebook page. The post quickly spread.
Thousands of outraged Facebook users complained to Bank of America and threatened to close their accounts with the bank. Bank of America justifiably fired the employee.
There are limits to firing employees over comments that could hurt the organization’s reputation.
The First Amendment usually protects general complaints about work. And the National Labor Relations Act of 1935 protects employees who are engaging in “concerted activity” to try to improve working conditions.
This has often been interpreted to protect groups of employees discussing working conditions on social media.
For example, a court recently ruled that Chipotle violated an employee’s rights when they fired him for posting a negative tweet about compensation and then circulating a petition.
Again, it’s wise for organizations to consult with legal counsel when creating an off-duty conduct policy.
The policy needs to be clear about distinctions between simply griping, talking about workplace conditions, and making comments that are detrimental to the business.
Often, it helps to have evidence that the employee’s off-duty behavior had a measurable impact on the bottom line. Such as in the Bank of America case, where clients were threatening to close accounts.
The conduct renders the employee unable to perform his/her duties satisfactorily
In some cases, an employee’s off-duty behavior may directly impact their performance on the job. And this gives companies just cause for disciplining the employee for that behavior.
For example, if a truck driver’s license gets suspended for driving under the influence while he’s off-duty, that obviously impacts his ability to perform his job.
This can also apply to less obvious issues such as moonlighting.
In some cases, an employee may be able to hold a second job without it impacting their performance. But employers have the right to discipline employees for moonlighting if it affects their attendance or performance.
Employers may also prohibit employees from using company time, resources, property, or trade secrets for side businesses.
In any case, a company’s off-duty conduct policy should include an employee moonlighting policy. It should clearly state what’s acceptable and what’s not.
It can be hard to prove that outside activities are impacting performance. So organizations should make sure to document evidence of the poor performance and how it relates to the off-duty conduct before taking disciplinary action.
The off-duty conduct caused other employees to (reasonably) refuse to work with the employee
Sometimes, the actions that create a hostile work environment happen outside of work hours.
For example, an employee may be making unwanted sexual advances or lewd comments toward another employee after hours.
As Human Resource Executive Online points out, these kinds of incidents can create liability risks for the organization, so it’s reasonable for the organization to take disciplinary action.
Other examples may include threats or defamatory comments about other employees. It could even include extreme political or social views that the employee has made public online.
The latter can be tricky. Employers should respect free speech, but hate speech directed at a certain gender, race, or religious group can make co-workers hesitant to engage with the employee and may be cause for discipline.
HR expert Brad Stultz told SHRM Online:
“Whether or not an employee should be terminated based on a comment on social media really depends on the severity and context with which the comment was made.
“If the comment was directed at a specific gender, race, nationality or religious group, there might be justifiable cause for termination. In regard to political free speech, employers should have an iron-clad social media policy that outlines the types of statements acceptable when representing the company.”
The conduct amounted to a serious criminal offense
Several states have laws that employee cannot be fired for legal activities outside of work hours.
This prevents employers for firing employees based on disagreements over things such as alcohol consumption, participating in political demonstrations, or smoking.
When it comes to illegal activity, the laws vary between states.
The U.S. Equal Employment Opportunity Commission (EEOC) specifies that an organization cannot fire someone simply because they have been arrested. But “an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”
Some states have laws that prohibit employers from firing an employee convicted of a crime unless the crime relates to their job.
So, for example, if an employee is convicted of theft, and that employee’s job entails dealing with money, the employer can fire them. But if the same employee was convicted of disorderly conduct, the organization may not have grounds to fire them.