Employer Regulation of Off-Duty Conduct: Some Guidelines for a Difficult Subject
Most employers have no desire to interfere in their employees’ private lives. But what can be done if an employee criticizes the employer or harasses a fellow employee online? What is an employer’s recourse in the more extreme example of an employee who has participated in unlawful, violent behavior while off duty, as prominently featured in the news concerning participants in the January 6th breach of the U.S. Capitol.
While this is a somewhat murky area of the law, with new statutes and case law emerging, there are general guidelines for what an employer legally can and cannot do, as well as, what it should or should not do. This article will provide guidelines for the employers of at-will employees in the private and nonprofit sectors. These constitute the vast majority of employees in those sectors, as opposed to unionized employees or the very small minority of private sector employees who have individual employment agreements, who may be subject to specific rules.
Here are some of the most vexing issues facing employers for off-duty conduct by employees and some tips for how to deal with them:
- Employers’ harassment and discrimination policies can be enforced for conduct by an employee against fellow employees while off the clock, which should be stated within the policy. Thus, an employee can be disciplined for sexually harassing conduct against a fellow employee occurring outside the workplace, as the effects of such conduct would definitely carry over into the workplace. Such a harassment can occur through emails, texts or social media in addition to overt conduct.
- In Pennsylvania, an employee cannot be disciplined for good faith whistleblowing claims, such as that involved in fraudulent or illegal conduct, even if made outside the workplace[CS1] .
- Discussion of an employee’s terms and conditions of employment may be protected activity for both unionized and nonunion employees under Section 7 of the National Labor Relations Act (“NLRA”). Thus, employees were held to be participating in protected activity when they responded to a group email from a former employee who complained about issues including wages, a restaurant’s tip policy, and the employer’s treatment of its employees. Likewise, an employer was ordered to rehire and provide back pay to a utility pole worker who was fired after he complained on Facebook about the employer’s safety policies.
- Fashioning rules that do not run afoul of the NLRA can be a challenging task. However, the National Labor Relations Board three years ago issued some common sense guidance for employers on rules that are generally lawful, those that are not and rules warranting individualized scrutiny. These guidelines can help employers to avoid overbroad rules, such as preventing employees from using social media to send messages that are “offensive or embarrassing to the Company.” There, the NLRB determined that the rule was so broad that it prevented employees from using social media to discuss any information about Company business without any exception for Section 7 – Protected Topics such as wages.
Off Duty Misconduct
- An employer can discipline an employee for off duty violent or criminal conduct. Here again, the underlying policy prohibiting such conduct on the job should be explicitly extended to include such conduct off the clock.
- An employer may also legally prohibit off duty misconduct for actions that cause harm to an employer’s business or reputation. It is important that the policy specifies that it is not meant to interfere with an employee’s legally protected rights under the NLRA.
- Courts are increasingly siding with employers on dismissals related to racially charged conduct committed off duty.
- Unlike public employees, private entity employees have no right to protected political speech in the workplace. Private employers may prohibit political speech and activity in the workplace. Generally, private employers may terminate or refuse to hire individuals because of their political activity or views. However, a number of states, including California, have statutes barring employers from taking adverse action against employees for different types of political activities. Pennsylvania does not have such a statute.
- Title VII could apply to protect such speech, however, depending on the issue (e.g., racial equality). OSHA would also protect speech on safety issues.
- A number of states, including Pennsylvania, have enacted laws that permit patients suffering from debilitating illnesses to use medical marijuana. Many state medical marijuana laws, including Pennsylvania, contain anti-discrimination provisions that prevent retaliation against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” These laws, however, authorize prohibitions against use on an employer’s premises and on-the-job impairment or intoxication.
- When to test and what to do with the results can be tricky with medical marijuana. Because evidence of marijuana use can remain in a person’s body for days or even weeks after its use, testing may not be indicative of current use or impairment. Thus, an employer should have both a positive test and evidence of impairment in order to discipline an employee who otherwise is legally authorized to use marijuana for medical purposes.
- Four states (California, Colorado, New York and North Dakota) have laws which prohibit adverse actions for lawful employee conduct occurring off duty. In spite of its lawful activity statute, a Colorado court upheld an employee’s discharge for using medical marijuana while off duty because medical marijuana use is not a lawful activity under federal criminal law, and Colorado’s statute makes no distinction between lawful activities under state or federal law.
- Many companies have no policies prohibiting moonlighting. Where such limitations are imposed, however, it is recommended that the policy be limited to reporting the outside employment to ensure it has no negative impact on the employer, such as work for a direct competitor.
- Some companies have anti-nepotism policies, which either prohibit dating or fraternization with fellow employees outright or limit the prohibition to those within the same chain of command. Others require that dating employees enter into a relationship contract, certifying that they have both entered into the relationship voluntarily and without coercion. The purpose of these efforts is to prevent harassment and discrimination, and such policies are fine as long as they are narrowly tailored to achieve those purposes.
While these tips provide some general guidelines, the situations that can arise in this realm are myriad, with factual distinctions making similar types of conduct legal under some circumstances and illegal under others. Each situation usually needs to be evaluated under its own merits to enforce proper discipline and avoid unintended problems.
To better understand how the laws outlined in this article specifically pertain to your business and situation, contact Ben Dunlap at firstname.lastname@example.org.
 Mexican Radio Corp., 366 NLRB 65 (2018).
 North West Rural Electric Cooperative, 366 NLRB 132 (2018).
 See National Labor Relations Board GC Memorandum 18-04 (Issued June 6, 2018).
 SOS International, LLC v. Pacific Media Workers Guild Communications Workers of America, Local 39521, 21-CA-178096, at 61 (March 12, 2018).
 See, e.g., Ellis v. Bank of New York Mellon Corp., No. CV 18-1549, 2020 WL 2557902, at *1 (W.D. Pa. May 20, 2020), aff’d sub nom. Ellis v. Bank of New York Mellon Corp, 837 F. App’x 940 (3d Cir. 2021) (federal judge dismissed a racial discrimination suit brought by a woman who was terminated after posting on Facebook that people protesting the shooting of a young black man by police should have been run over by a motorist).
 However, see Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3rd Cir. 1983), where it was held an employee could not be disciplined for refusing to participate in employer’s political lobbying effort.
 35 P.S. § 10231.2103(b)(1).
 Coats v. Dish Network, LLC, 215 CO 44 (June 15, 2015).