Can you Fire an Employee for Their Off Duty Behavior?

Inappropriate conduct by employees outside of work has long been a concern for employers. The media is full of examples: a police officer arrested for drunk driving; an executive caught using racist language; a teacher with an Instagram account full of provocative pictures.

You may not want to know what your employees did last night, but these days, it’s almost too easy to find out. Social media is the number one reason—search on “fired for Facebook post” for a few good laughs—but traditional media, and good old word of mouth are still factors.

For businesses, the concerns are real. Unlawful, unethical, and/or improper conduct can adversely affect your company’s reputation, interests, and goodwill within the community. Injury to reputation can directly impact a company’s bottom line. You have to protect your brand.

There are numerous scenarios that may have private employers instinctively reaching for a red slip, but take a moment to consider the situation and implications. Many activities are protected or developing under the National Labor Relations Act (NLRA).

In fact, the question of when termination for online remarks constitutes unlawful retaliation is “the leading type of claim filed with the Equal Employment Opportunity Commission,” according to the Society for Human Resources Management.

When in doubt about whether an employee’s behavior crosses the line, consult a legal and/or human resources expert.

Here are a few scenarios of off duty behavior that employers may be confronted with.

An employee is complaining about their job duties, specifically about being underpaid and short-staffed, on Facebook. Other employees chime in echoing those same criticisms. Can they be fired?

An individual employee griping or complaining about work without intent to “initiate, induce, or prepare for group action” is not technically protected by the NLRA and their actions may be grounds for termination. That said, this is a very gray area and employers should tread carefully before taking adverse action in response to a social media rant. The National Labor Relations Board (NLRB) has found that social media posts may be protected even if they appear to disparage a supervisor or employer.

Many states now have laws that specifically prohibit employers from requiring job applicants or employees from having to provide their social media usernames and passwords. A similar bill (HB 1739 Relating to Employment) was considered in the Hawaii State Legislature last year, but ultimately vetoed by Governor Ige.

An employee fails a random drug test by testing positive for marijuana. When confronted with the results, they produce a medical marijuana card and say that all the medical use has been outside of work. Can they be fired?

Current Hawaii law has protections for medical cannabis patients in housing and healthcare, but not at work. Until recently, most court decisions nationwide upheld the rights of the employer to enforce zero-tolerance policies. However, recent cases in the continental U.S. suggest that the pendulum may be swinging the other direction.

If courts begin interpreting the law in favor of state legalization laws, employers may have to tolerate medical marijuana use and revise their substance abuse policies or even drop marijuana testing altogether. For now, however, Hawaii business owners can establish their substance abuse policy as they see fit, within the boundaries of the law.

It is critically important that any substance abuse policy be set in writing, include the company stance on medical marijuana, and be consistently applied. Across the country, considerations related to the Americans with Disabilities Act Amendment Act (ADAAA) and medical marijuana are coming up more frequently, making this a topic for employers to watch closely.

You find out at a business networking event that an employee of yours is also doing some contract/freelance work for another business that competes with yours. Can they be fired?

Maybe. Moonlighting, also called a side hustle—having a second job in addition to regular employment—is not illegal but it’s not a protected right, either. One key issue is whether or not an across-the-board company policy on moonlighting crosses the line into an employee’s privacy.

Even without a legal agreement, you may have grounds for termination if the second job presents a conflict of interest or if the employee compromises confidentiality or trade secrets. And, if the second job impacts performance at the primary job, you may certainly take action based on performance issues. A tired, chronically absent, or unavailable employee could seriously impact safety and productivity at your company.

On a Twitter post, you find out that an employee is encouraging activists to engage in protest activity against a project that you support. Can they be fired?

Typically, no. If the organization is on their own time, does not use company resources, impact work performance, or break the law, you’ll just have to agree to disagree.

However, it depends to some extent on the role of the employee in the organization. For example, it would be inappropriate for the CEO of a non-profit to campaign for a conflicting cause, or a legislative representative to publicly support members of the opposing party.

With ever-changing laws, companies are well-advised to review their policies on a regular basis to ensure they are not overly broad. Policies must carefully balance an employer’s interests without limiting workers’ protected activities.

Read more about protected concerted activity on the National Labor Relations Board website.

An employee comes to you concerned because she witnessed an incident where another employee and their spouse got into a physical altercation after work in the company parking lot. Can they be fired?

No, you wouldn’t want to fire the employee simply based on the reports of a second-hand witness. However, domestic violence is a serious issue and a leading cause of workplace death for women. Whether your employee is the alleged abuser or the victim, take the report very seriously.

Alongside an HR representative, have a conversation with the employee about the incident and make your concerns known. Be prepared to speak to available services such as counseling or your employee assistance program, if you have one. Depending on the role the employee played in the altercation, they may need flexibility to deal with the issue.

Keep in mind that employees may not want to discuss personal issues, and that’s okay, too, as long as it’s not affecting the workplace. To protect employment rights of victims of domestic and sexual violence, the State of Hawaii enacted Act 206 in 2011. (See: FAQ Sheet for Act 206 PDF)

[Related: Employment Rights for Victims of Domestic Violence]

While employers do need to be informed about the impact of domestic violence on the workplace, they are not expected to be experts. The interpersonal, safety, and legal issues around domestic violence should be left to trained professionals. The employer’s obligation is around violence prevention:  establish a team to address the issue internally, develop compliant policy, provide training, and build awareness.

You suspect an employee is abusing alcohol. They have a high degree of absenteeism that doesn’t seem to follow a pattern. They often appear tired and irritable and at least once were caught napping in the break room. At company parties, they are often highly intoxicated. Can they be fired?

No.  First of all, you cannot assume you know the cause of their absenteeism and should never diagnose an employee with a substance abuse problem. Confront or discipline them on performance alone. If they disclose that they suffer from alcoholism, which is considered a disability, they may be eligible for protections under ADAAA and/or the Family and Medical Leave Act (FMLA). This may include time off to attend Alcoholics Anonymous meetings or for a rehab program.

If the employee appears intoxicated at work, then that is a different matter that also requires careful attention. See: Drunk at Work: What HR Can Do About Employees Drinking on the Job (Society for Human Resources Management). A written, consistently applied substance abuse policy is critical.

This article is for informational purposes only and does not constitute legal advice. Readers should first consult their attorney, accountant or adviser before acting upon any information in this article.