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Terminating employees for off-duty conduct

kappelman-and-mooneyThe old adage we learned in law school — or in human resources courses — that employers may terminate “at-will” employees for “any reason or no reason at all,” as long as the reason is not discriminatory, requires a further qualification.

Depending on the state where employers are located, they may be prohibited from terminating employees for engaging in various “off-duty” conduct as well.

The broad and public reach of social media, the legalization of medicinal and recreational marijuana, and society’s current penchant for videotaping and photo documenting have blurred the lines for many employers when it comes to regulating employee off-duty conduct.

For example, clients mistakenly assume that they may freely terminate an employee for disparaging the employer on social media. Similarly, clients often ask us if they may terminate an employee if she posts embarrassing photos on her Facebook page where clients and other employees may see them.

Even if off-duty conduct or speech is not protected by the NLRA, it may be protected by state-specific off-duty conduct laws. Many states have enacted statutes protecting employees who engage in lawful off-duty conduct.

Finally, many of our clients assume that they may freely terminate an employee who they learn has tested positive for marijuana.

In fact, the answer to all these questions may be different from one state to the next.

Before taking any action against an employee, employers must consider whether the off-duty conduct is protected by state or federal law.

For example, the National Labor Relations Act forbids an employer from taking adverse action against an employee for engaging in “protected concerted activity.” This prohibition has been interpreted to protect employees’ social media posts. When an employee disparages his employer on social media, that conduct may be protected if the online statements reflect “concerted activity,” such as employees discussing wages or workplace rights.

In an actual case, a sports bar called Triple Play terminated two employees for comments they made on Facebook. One employee had posted: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!” A second employee commented on the status by writing, “I owe too. Such an asshole.”

Ultimately, the 2nd U.S. Circuit Court of Appeals found that Triple Play had violated the NLRA when it terminated the employees because they were engaged in an “ongoing sequence of discussions” concerning workplace complaints about tax liabilities.

As a result, before they take any adverse action, employers should determine whether the employee’s speech or conduct constitutes concerted activity.

Even if off-duty conduct or speech is not protected by the NLRA, it may be protected by state-specific off-duty conduct laws. Many states have enacted statutes protecting employees who engage in lawful off-duty conduct.

For example, Colorado has enacted broad off-duty conduct protections, making it illegal for an employer to terminate an employee for engaging in any lawful activity off the employer’s premises and during nonworking hours.

Similarly, New York has enacted broad protections prohibiting employers from terminating employees for “legal use of consumable products prior to the beginning or after the conclusions of the employee’s work hours, and off of the employer’s premises.”

Under New York or Colorado law, thus, an employer may not terminate an employee for posting compromising or embarrassing photos and sharing them with clients or co-employees.

Other states have more limited off-duty conduct laws, protecting employees who engage in specific activities. For example, numerous states, including Connecticut, the District of Columbia, Indiana, Maine, New Hampshire and others, have laws protecting employees from being terminated for using tobacco products.

Many other states, including California, Colorado, Illinois, Louisiana, Minnesota, Missouri, Nebraska, Nevada, New York, South Carolina and West Virginia, prohibit employers from taking adverse action against employees for engaging in “political activities.” So, for example, if an employer finds out that an employee has attended a political rally that has racially charged, or anti-semitic, overtones similar to the “Unite the Right” rally in Charlottesville, Virginia, the employer could not take any adverse action against that employee if they are in a state with a statute that protects such political activity.

Perhaps the most oft-posed question these days is whether employers may terminate an employee who tests positive for marijuana use. As of the date of publication, over 30 states have legalized marijuana use in certain circumstances, either medicinally or recreationally. Some of those states have even implemented protections for employees who use marijuana. Connecticut, for example, has passed the Palliative Use of Marijuana Act, or PUMA, which states that “[n]o employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.” A Connecticut court held that an employer violated PUMA when it refused to hire an applicant who disclosed that she used medical marijuana.

In other states, however, when employers have terminated employees for either medical or recreational marijuana use, and such use was legal in that state, courts have held that because marijuana is illegal under federal law, the employer did not violate any off-duty conduct laws prohibiting termination for legal conduct. As a result, when faced with an employee who has tested positive for marijuana, the answer depends on the laws the state has enacted regarding marijuana use.

Finally, nearly half the states in the country have laws restricting an employer’s ability to access or request information about employees’ and applicants’ social media accounts.

For example, California broadly prohibits employers from requesting social media information from employees or job applicants. California employers cannot require employees to disclose social media content unless the content is “reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations.”

Similarly, Connecticut prohibits employers from requiring an employee to “authenticate” a personal online account in the presence of an employer.

It is important to note that these laws do not prohibit an employer from viewing information about an employee that is publicly available on the internet. Thus, when an employer learns of social media conduct, whether it is through a co-worker who is connected to the employee on social media or through the employee’s public social media account, employers should be careful not to ask the employee to disclose information prohibited by law.

In summary, before an employer takes adverse action against an employee for engaging in off-duty conduct of any kind, the employer must make sure that the conduct in question is not protected by any federal laws such as the NLRA or the state’s off-duty conduct laws.

Lynn A. Kappelman is a partner in Seyfarth Shaw’s Boston office. Her practice focuses in the area of labor and employment litigation. Molly C.  Mooney is an associate in the firm’s labor and employment department.

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