Faegre Drinker labor and employment partner Susan Kline recently discussed what employers can and cannot regulate regarding workers’ off-duty conduct and speech with XpertHR.
In the article “Capitol Riot Offers Reminder That Private Employers Can Broadly Regulate Certain Off-Duty Conduct,” the publication explained that while the First Amendment does not apply to private employers, about 29 states have laws protecting off-duty conduct, but those protections are not unlimited.
“That protection is out of the picture for anyone who was inside the Capitol,” said Kline. “An employer needs to be prepared to say, ‘This isn’t about your politics or social activism. You were engaging in [unlawful] conduct in violation of our policies.’”
Kline said that there might be “gray areas” for people in the crowd of onlookers who never approached the Capitol. She added, “If the employee encouraged unlawful activity in any way, however, the employer can take action.”
Further, Kline agreed that employers have even more discretion to act when a supervisor is involved. “A supervisor represents the company 24-7,” said Kline.
Lastly, Kline pointed out that a social media message that involves hate speech or that encourages unlawful conduct will never be a protected activity whether or not someone actively participated in an activity.