In my former life as a teacher, I was given a new school pride t-shirt at the start of every school year. We could always count on the principal to gently remind us that everything we did while wearing that shirt reflected on the school. So, if we planned to attend any Friday happy hour "staff development" meetings, we were encouraged to change out of our school pride t-shirts because "you never know who might be sitting at the next table." This precaution made sense to me because I was in the business of teaching children. But what if you're not an educator? Does your employer have the right to police your off-duty conduct?
In an at-will relationship, both the employer and employee may terminate the employment relationship at any time and for any reason, as long as that reason is not unlawful. A company should not, however, exercise its disciplinary power to regulate the personal lives of its employees. What an employee does outside of work, after business hours is generally of no concern to the employer. When an employee's off-duty conduct results in an actual business loss to the employer, however, it is permissible for the employer to take steps to protect its business and reputation.
For example, late last year, Nordstrom fired an employee after a post appeared on his personal Facebook profile advocating the killing of white police officers. The termination followed immense criticism against Nordstrom, because the employee's Facebook page included a photo of what appeared to be the inside of the store and a link to the retailer. Even though the post was completely unrelated to his employment at Nordstrom, the employee was terminated because Nordstrom "[does not] tolerate violence or threats of any kind" and the employee's post adversely impacted the business goodwill important to the retailer's success.
To avoid any misunderstandings, employers should include off-duty conduct in their written disciplinary policies. The fact that an employee may be terminated for off-duty conduct that is harmful or injurious to the reputation of the business should be clearly articulated. A carefully worded policy and prudent exercise of disciplinary power can help a company avoid post-termination litigation, further preserving its reputation.
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