“A number of people have been fired after videos of their bad behavior in public were posted online. Is it legal to fire an employee for such public behavior when not on the job?”
The bottom line
In almost all cases, an employer can legally fire an employee for inappropriate behavior during personal time. The First Amendment doesn’t apply to work and employers have wide latitude to terminate people for things they say and do. “A private employer does not have to respect your free-speech rights,” says Stacy Hawkins, a law professor at Rutgers University. “Only the government has to do that.” In other words, generally speaking, you can’t be arrested for saying abhorrent things, but you can be fired.
The details
Such incidents seem more common these days. Smartphones allow people to record the behavior, and social media provides a platform for publicizing it and for individuals to be identified through crowdsourcing.
Here are three incidents that happened in the past three months: A white woman called the police after a Black man bird-watching in New York’s Central Park asked her to leash her dog. She was charged with a crime—filing a false police report. Her employer, the investment firm Franklin Templeton, fired her shortly afterward. A New Hampshire radio host lost her show after she posted a video of herself demanding that Latino landscapers speak English. A Florida insurance agency terminated an employee following his outburst at Costco when asked why he wasn’t wearing a mask.
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Every U.S. state except Montana has “at will” employment laws, which means an employer can hire and fire workers for just about any reason except discriminatory ones. Discrimination is based on status, such as race or sex, and not behavior, so most of these incidents wouldn’t come close to meeting the discrimination standard, Ms. Hawkins says.
Some employment contracts—for example, for union-represented employees or high-ranking executives—stipulate that workers can be terminated only “for cause,” meaning a reason like performing poorly or violating corporate policies. Laws in a few states, including California, Colorado and New York, make it harder for companies to fire people for off-the-clock behavior.
But even in those instances, employers have a lot of leeway to maintain a safe and peaceful workplace. If someone’s behavior outside work reveals a side of them that can compromise their relationships with co-workers or customers, or suggests they might be prone to violence or aggression, employers would be wise to fire them, says Kate Bischoff, a Minnesota employment lawyer and founder of tHRive Law & Consulting. “In the world we live in now, the line between personal and professional is so muddled that you can’t necessarily separate them,” she adds.
Ms. Bischoff advises clients to write codes of conduct with policies saying something like, “We expect you to use good judgment at all times,” she says. “It’s kind of like, ‘Don’t be dumb, because if you’re dumb, it’s going to reflect negatively on us.’ ”
Write to Lauren Weber at lauren.weber@wsj.com
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