Employee Liability for Out of Work Conduct
Submitted by Tami Z. Hannon, Esq., Mazanec, Raskin & Ryder LLP
In the wake of recent events, a rising issue is to what extent an employer can hold an employee responsible for conduct that occurs out of work. For example, if an employee attended a rally that turned violent during the employee’s off-hours, could the employer terminate or otherwise discipline the employee? What if the employee published a newsletter or other article condemning individuals of particular races, religions or backgrounds?
A lot of times what an employee does on his or her own time is of no concern and out of the control of the employer. When the employee’s out of work behavior, however, crosses over into their job, then issues arise. An employer may rightfully question an employee’s ability to interact with coworkers, suppliers and customers if the employee is sending out divisive messages on his or her own time.
The most frequent response is “this is a free country. Don’t I have the right to free speech?” Yes, you do and regardless of my personal views on the value of what you may be saying, I honor and respect your right to say it. However, the First Amendment guarantees of free speech only apply to prevent the government from restricting speech in certain cases. The First Amendment does not apply or insulate you from the outcome of your speech with respect to your private employer.
Employee speech receives certain protections under the National Labor Relations Act (NLRA), even for non-unionized employers. The NLRA’s protections cover employee speech concerning numerous aspects of the workplace, including compensation, working conditions, supervisors and workplace policies. The protections also allow an employee to engage in political speech to the extent that speech relates to labor or working conditions, including contacting legislators or attending protests or demonstrations. These protections often apply even if the language used is profane.
The focus of the NLRA is protecting employee’s rights to unionize. As such, the speech typically must occur by and between two or more employees, or be by one employee speaking on behalf of a group of employees and pertain to workplace conditions. This may be a tough sell if an employee is acting in furtherance of his or her own personal beliefs unrelated directly to the job. It is not always clear what the employee’s purpose is in attending demonstrations or rallies. For example, if an employee attends a rally on immigration reform, does that rally further the employee’s personal interests or is it a statement about the employee’s beliefs on workplace conditions and job availability?
As the reasons for attending a rally or demonstration can be an unclear issue, other areas of the NLRA may offer better guidance. The NLRA does NOT protect speech which would violate other laws, such as anti-discrimination and harassment laws. Similarly, the Equal Employment Opportunity Commission and courts have found that out of work discriminatory or harassing statements can violate the anti-discrimination and harassment laws if there is a connection to the workplace. Additionally, the NLRA largely does not protect engagement in violent conduct. As such, the NLRA is unlikely to offer sanctuary for an employee who offers hate speech, discriminatory speech or engages in violent conduct outside of work.
If an employee’s conduct has repercussions with the criminal justice system, the employer can address those issues the same as any other illegal conduct by an employee. For example, if an employee is in jail and unable to come to work, the employer can treat that inability as it would any other failure to show up for work.
Alternatively, what protections exist for those that wish to engage in protests or demonstrations of any kind? Again, constitutional protections such as the right to free speech, the right to assembly and the right to petition the government do not generally impose limits on a private employer. Any internal requirements for utilizing paid leave or calling off of work should be followed, and requests should be reviewed and approved or denied using the same standards applied to other requests for leave.
Now more than ever, employers need to be aware of and sensitive to potential issues of harassment, discrimination and workplace violence. Employee complaints should be taken seriously and investigated. It may be worthwhile to provide training to your employees on your policies, or to take a moment to remind employees of your company’s stance on expected and appropriate workplace behavior.