Can employers regulate employee conduct outside of work?

By Liz Hartsel

On May 25, 2020, a white woman falsely reported to police that an African-American man was threatening her life because she was unhappy that he was filming that she was refusing to leash her dog in an area of New York City’s Central Park where leashes are required.

The employee had worked at Franklin Templeton, a global investment fund. Franklin Templeton subsequently fired the employee, stating in a tweet, “We do not tolerate racism of any kind of Franklin Templeton.”

When can an employer terminate an employee for off-duty conduct that does not comply with the company culture?

If an employee is at-will, both the employee and the employer can end the employment relationship at any time for any reason without notice. There is no federal law prohibiting an employer from terminating an employee for racist speech said outside of the office. For instance, the First Amendment does not prevent a private employer from taking action based on employee speech. The only exception is when the discharge is compelled or influenced by the state, such that it constitutes “state action.” Similarly, courts have rejected arguments that federal antidiscrimination and equal protection laws or Title VII protect an employee’s termination based on membership in a racist organization like the KKK.

Some states, like Colorado, New York, and California, have passed laws prohibiting terminating an employee for participating in legal activities outside work hours. There are exceptions to these laws, however, if the restrictions relate to a bona fide employment requirement or are necessary to avoid a conflict of interest with any responsibilities to the employer. See C.R.S. § 24-34-4025.

In the social media age, when a tweet can be heard around the world in a matter of seconds—and internet sleuths are just as quickly able to link the sender to their place of employment—companies may wonder what they can do about employees that engage in off-work activities that reflect poorly on the company.  Employers with questions on how to address these issues when the arise both inside and outside the workplace should contact an employment law specialist at Fortis Law Partners who is available to analyze the issue.

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