As the nation prepares to celebrate the Fourth of July with parades, fireworks, and barbeques, many employers may find themselves faced with a challenging issue—how to manage employee conduct that occurs off the clock, especially when it is political, controversial, or very public.
From firework displays to Pride parades and political rallies, employees often seek to express their personal beliefs outside the workplace. In today’s polarized climate, the line between personal expression and professional consequences is often blurry. When off-duty participation in such activities is easily captured, shared, and scrutinized online, a single photo from a protest or viral political tweet can ignite tension inside the workplace. Consequently, employers must navigate the legal—and reputational—risks of reacting to off-duty political activity by asking themselves: Can (or should) we discipline employees for what they do or say on their own time? The short answer? It depends.
What about the First Amendment? Turns out speech isn’t as free as you might think!
One of the most common misconceptions is that employees have a blanket First Amendment right to say what they want, when they want, without employer interference. While public employees have certain constitutional protections, private-sector employees do not have the right under the United States Constitution to engage in off-duty, political, or controversial activity without consequences from their employer.
But wait! What about state law?
Although private-sector employees may not have federal protections, some states have laws prohibiting employers from disciplining or firing employees based on lawful, off-duty conduct. Some states like California, New York, Colorado, North Dakota, and Connecticut prohibit employers from retaliating against employees for engaging in lawful off-duty conduct or political activity. For example, North Dakota broadly protects employees from discipline related to participation in lawful activity off the employer’s premises during nonworking hours. Similarly, New York prohibits employers from firing or disciplining employees based on political activities conducted outside of working hours and off the employer’s premises. Meanwhile, some states do not have any statutory protections for employee, off-duty conduct.
Employers should tread carefully when responding to an employee’s off-duty conduct—even if the activity is controversial or unpopular—and ensure they do not violate state law by disciplining an employee for a controversial or unpopular social media post.
Even in states that offer legal protections, not all off-duty conduct is off-limits to discipline. For example, employers may generally take action when:
- The employee engages in unlawful conduct, even if the underlying cause is political;
- The off-duty conduct interferes with job performance or creates a workplace disruption; and
- The employee holds themself out as a representative of the company while performing the conduct.
In other words, participating in a peaceful march in a personal capacity during off-hours may be protected—but engaging in vandalism, trespass, or violence (whether in a personal or representative capacity) may be a lawful basis for termination, regardless of whether there is a political motive.
Don’t forget about the NLRA!
Even outside of a unionized environment, off-duty conduct may be protected under the National Labor Relations Act (NLRA). Under the NLRA, employees have a right to engage in protected concerted activity—including public demonstrations—related to work-related issues, including working conditions, wages, discrimination, or workplace safety. For example, an employer may violate federal law if they discipline an employee for participating in a rally advocating for higher wages or post on social media about a toxic work environment.
In contrast, the NLRA generally will not protect an employee’s political social media posts where there is no connection to workplace concerns. However, when political or social issues and workplace concerns overlap, the NLRA’s protections may apply. For example, an employee’s decision to wear a Black Lives Matter insignia on a work uniform may be protected under the NLRA. Employers should consult with labor counsel when addressing the complicated nuances of protected concerted activity under the NLRA.
What are employer best practices?
To navigate this polarizing terrain, employers should focus on consistency, clarity, and caution:
- Ensure handbooks and workplace policies are view-point neutral, prohibit discriminatory or harassing content, address off-duty conduct, and disclaim that employees speak for themselves, and not the company;
- Apply handbooks and workplace policies uniformly and consistently, regardless of the content of the off-duty conduct;
- Train supervisors to understand the limits of responding to off-duty conduct and when to escalate issues to HR or legal counsel;
- Familiarize yourself with applicable state and local laws protecting off-duty conduct or political expression;
- Document discipline by clearly noting how the off-duty conduct violated company policy or law, affected job performance or caused a workplace disruption, or damaged the company’s legitimate business interests; and
- Create a culture encouraging civility and respectful dialogue around political or personal expression in the workplace.
