When employees are in the workplace, their employer wields significant power over what they can and cannot do.
But once they leave work, the line blurs over how much control an employer has over their conduct.
To be sure, an employee’s off-duty behavior could impact or tarnish an employer’s reputation, but knowing where to draw the line is also important.
“An employer should probably steer clear of nitpicking and micromanaging the private lives of his or her employees unless it’s harmful to the business,” says Andrew Kimler, a partner at the Lake Success-based law firm of Vishnick McGovern Milizio LLP.
With that said, New York is an at-will employment state, says Kimler.
That means an employer generally can fire someone for any reason, unless the firing breaches terms of an employment contract or violates anti-discrimination laws, he says.
Still, there are certain restrictions.
For instance, in New York there’s a law that prohibits employers from terminating employees based on their legal off-duty conduct. Among the protected activities are the legal use of consumable products and participation in legal recreational activities including, but not limited to, sports, games, hobbies, and exercise, says Kimler.
New York law also specifically prohibits an employer from terminating employees for political activities outside of work hours, says Jason Habinsky, a partner in the Manhattan office of Haynes and Boone. These include running for public office, campaigning for a candidate for public office or participating in fundraising activities, he says.
Participating in protests, though, falls into a gray area, say experts. Some participants in a white supremacist march that turned violent last month in Charlottesville, Virginia, reported losing their jobs after employers saw their faces in media reports.
Locally, New York labor law’s definition of political activities doesn’t specifically include political or other protests, and the law further doesn’t protect an employee’s actions if they’re deemed illegal or create a conflict with the employer’s business interest, says Habinsky.
Therefore, it’s unlikely that the conduct in Charlottesville would fall squarely under New York’s protection of political activities, says Habinsky. However, it remains advisable for an employer to implement either a stand-alone policy, or a variety of policies carefully defining any employee activities that the employer may regulate outside of the workplace, he says.
Diane Pfadenhauer, an attorney and principal at Employment Practices Advisors, a Northport firm that specializes in employment law and HR consulting, says she usually sees reference to off-duty conduct melded in with a firm’s other policies. Often employers will blend it in with a moonlighting policy that addresses issues of working for another establishment, she says.
Some off-duty conduct is clear-cut cause for termination, but in other cases, employers need to ask some key questions, says Pfadenhauer. What is the impact on the workplace and work environment if you keep the person? Does the behavior affect the individual’s job performance or your business?
“I think employers have to tread very carefully,” she says.
Keep in mind, though, the First Amendment’s protection of free speech doesn’t shield a private sector employee from getting fired, says Terry Leap, a professor of business administration in the Haslam College of Business at the University of Tennessee, Knoxville, and author of “Dishonest Dollars: The Dynamics of White-Collar Crime” (Cornell University Press; $42.95)
“That’s really only relative to suppression by the government [of free speech],” he says. “It has no impact on whether your employer can fire you or not fire you.”
Given New York State’s at-will employment status, with certain exceptions, whatever an employee does or says off-duty they do “at their own risk,” says Leap.
Percentage of respondents who believed that getting fired because of a social media post is an infringement of First Amendment rights, when in fact they could face termination.
Source: HubShout’s 2016 social media conduct survey