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The AR Group

Can Employers Terminate Employees for Off-Duty Conduct?

By Christine Wilkinson

Within the last month, Chelsea Welch, a waitress at Applebee?s, was fired for posting a customer?s dining receipt on a social media site while off the clock. Joe Hundley, a vice president for Unitech, was fired for allegedly hitting a child and using a racial slur during a personal trip.? These recent, and public, instances of employers firing employees for actions done on the employees? own time beg the question: Can an employer legally fire an employee for conduct outside the workplace?

The answer is that, yes, in certain circumstances, employers can terminate an at-will (non-contractual) employee for conduct engaged in while off-duty.?? Under the ?at-will? doctrine of employment, an employer can terminate an employee for any reason or no reason, as long as the reason is not an illegal reason.?

What, exactly, is an illegal reason for firing an employee?? There are numerous federal and state laws that say employers cannot terminate employees because of the employee?s race, color, national origin, religion, sex, pregnancy, sexual orientation, age and disability. Federal law also prohibits employers from firing workers for engaging in legally protected activities such as union organizing, whistleblowing, filing a workers? compensation claim and reporting potential safety violations. Other factors that can limit the employer?s ability to fire employees are written employment contracts and employee handbooks that state the employee can only be terminated for cause.?

When can an employer fire an employee for actions taken off the clock? Here are two instances:

  1. Employee violated the company?s code of ethics/code of conduct: ?A code of ethics or a code of conduct is the company?s statement that describes its values, goals and expectations of integrity among its employees.? Some codes are now incorporating a ?conduct unbecoming? aspect, as well, requiring employees to refrain from engaging in any off-duty conduct that will tend to harm the company?s reputation or impair its effective operation.? Unitech, a defense contractor, may have relied on a similar policy when it terminated Hundley, saying that his conduct was contradictory to its company values and embarrassing to the company.
  2. Employee violated the company?s privacy policy and/or social media policy: These policies outline requirements for employees disseminating customer information and posting on social media discussing their employer.? Applebee?s justified its termination decision based on Welch?s admitted violation of its social media policy. The policy was contained in the employee handbook issued to all employees and stated that employees were not permitted to transmit internal information or post identifying information of its customers on social media sites. When Welch uploaded the photograph of the receipt, she did not cover the customer?s signature, which was legible and identified the customer by name. The embarrassed customer called Applebee?s and Applebee?s terminated Welch.

The most critical aspects of any of these policies is that they exist at the time of the infraction, since no retroactive policies can be relied upon, and that the policies are enforced as to all employees. Consistent enforcement will help forestall attempts by employees to argue that the company?s use of a certain policy to justify their termination (or other disciplinary measure) was merely a pretext to discrimination which, is, as noted above, illegal. In addition, well-written policies will be broad enough to cover a variety of situations.

These policies are powerful tools when they clearly explain that violations can result in discipline, up to and including termination, and that certain infractions will result in immediate termination.?? In any circumstance when an employer is considering taking disciplinary action against an employee for off-duty conduct, the employer must consider whether the conduct is lawful or illegal, whether any law protects the conduct, and whether the policy has been applied consistently in other situations. Firing an employee for off-duty conduct requires an individual analysis, and well-written policies are the best way to protect a company and put its employees on notice of what is expected of them.?

SMART TIP: Employers should note that certain terminations can go viral, and become newsworthy, very quickly in this digital age.? Employers should consider whether they would face backlash from the public for an unpopular decision.? For example, Applebee?s has received thousands of negative comments on its Facebook page, and at least two other Facebook pages have been started demanding Welch have her job back.?

Key Words: employee, termination, off-duty conduct