When Can You Fire an Employee for Off-the-Clock Behavior?
Chris Cuomo was fired from his job as a CNN anchor after it was revealed he assisted his brother, then Governor Andrew Cuomo, with issues regarding his sexual harassment scandal. TJ Holmes and Amy Rohrback were let go from Good Morning America after their personal relationship came to light. And Rachel Nichols lost her position at ESPN after a recording of a telephone call surfaced where she mentioned that her colleague was being given a hosting job because of her race.
What do all of these people have in common? In addition to being respected journalists, they were all fired for behavior that they engaged in outside of their employment, where all had seemingly excellent job performance ratings. All the firings beg the question, when can an employer fire an employee in any industry for actions taken on their own time outside of work hours?
Breaking a Company's Code of Ethics
A code of ethics or professional responsibility policy are popular (and very general) clauses in many employment contracts and employee handbooks. They demand that employees behave in the company's best interests at all times, including after-hours activities on social media.
There are obvious issues with this level of protection for the company (the employee’s rights to First Amendment free speech in their social media posts and right to associate or conduct political activities for example). What about protections for the employee?
Specific protections are provided for whistleblowers regarding their reporting of illegal activity at their workplace. In general, however, entering into an employment contract or an at-will employment situation is an individual decision, and people are free to work wherever they choose. But they need to understand the rules and regulations of their chosen employment.
Making the Business Look Bad
Employers might include a code of ethics in employment agreements to avoid causing harm to a company’s reputation. It is a case-by-case determination that depends on state law and what employee behavior you seek to prevent by disciplinary action or termination.
Many states have limitations on when an employer can terminate an employee for off-duty conduct, even in an at-will employment situation where there is no contractual obligation. For instance, some employers have fired employees for smoking or using tobacco products after work hours and have run into some legal problems down the line, as smoking is not an illegal activity. However, the question of marijuana usage may be relevant as it is not legal everywhere.
In the end, a showing of just cause is usually required to fire an employee for off-duty activities. In order to show this, an employer should be able to specifically articulate how the off-duty conduct sheds a negative light on the business as a whole.
More than other employment decisions, firing an employee for his or her off-duty conduct is a truly individual analysis based on company policy and state and federal employment law. Including specific provisions regarding the expectations for an employee’s off-duty conduct in an employment contract or employee handbook is one way to put the employee on alert and help to shield an employer from potential liability down the road. If you are considering such a policy or are in the situation of needing to terminate an employee for their conduct outside of work, you should consult an attorney for legal advice.
Related Resources:
- Employee Rights After a Job Termination (FindLaw’s Learn About the Law)
- Firing an Employee - FAQ (FindLaw’s Learn About the Law)
- Legal Tips When Firing an Employee (FindLaw’s Learn About the Law)
- An Employer's Liability for Employee's Acts (FindLaw’s Learn About the Law)
