Can you Fire an Employee for Their Off Duty Behavior?

Inappropriate conduct by employees outside of work has long been a concern for employers. The media is full of examples: a police officer arrested for drunk driving; an executive caught using racist language; a teacher with an Instagram account full of provocative pictures.

Knowing what your employees did last night is almost too easy to find out. Social media is the top culprit—just search ‘fired for Facebook post’ for examples—but traditional media and word of mouth still play a role.

For businesses, the concerns are real. Unlawful, unethical, and/or improper conduct adversely affects your company’s reputation, interests, and goodwill within the community. Injury to reputation directly impacts a company’s bottom line. Prioritize protecting your brand.

Numerous scenarios have private employers instinctively reaching for a red slip. First, stop and take a moment to consider the situation and implications. The National Labor Relations Act (NLRA) protects many activities.

According to the Society for Human Resource Management, this issue is now the leading type of claim filed with the Equal Employment Opportunity Commission (EEOC). Employers often struggle to determine when firing someone for online remarks crosses into unlawful retaliation.

When in doubt about whether an employee’s behavior crosses the line, consult a legal and/or human resources expert.

Here are a few scenarios of off duty behavior employers may encounter.

An employee is complaining about their job duties, specifically about being underpaid and short-staffed, on Facebook. Other employees chime in echoing those same criticisms. Can they be fired?

An individual employee griping or complaining about work without intent to “initiate, induce, or prepare for group action” is not technically protected by the NLRA and their actions may be grounds for termination. This is a gray area, so employers should proceed cautiously before taking action over a social media rant. The National Labor Relations Board (NLRB) has found that social media posts may be protected even if they appear to disparage a supervisor or employer.

Many states’ laws prohibit employers from requiring job applicants or employees from having to provide their social media usernames and passwords. Hawaiʻi lawmakers passed Act 39 in 2021, giving legal protections to employees and applicants from providing their usernames and passwords to employers.

An employee fails a random drug test by testing positive for marijuana. When confronted with the results, they produce a medical marijuana card and say that all the medical use has been outside of work. Can they be fired?

Current Hawaiʻi law has protections for medical cannabis patients in housing and healthcare, but not at work. Most court decisions nationwide uphold employer rights to enforce zero-tolerance policies. However, recent cases in the continental U.S. suggest the pendulum is swinging in the other direction.

If courts start favoring state legalization laws, employers may need to allow medical marijuana use and revise substance abuse policies—or even eliminate marijuana testing. For now, Hawaiʻi business owners can set their own policies, as long as they comply with the law.

It is critically important that any substance abuse policy be set in writing. Apply your policy consistently and be clear to include the company stance on medical marijuana. Across the country, issues involving the ADA Amendments Act (ADAAA) and medical marijuana are increasingly common, making this a trend employers should watch closely.

You find out at a business networking event that an employee of yours is also doing some contract/freelance work for another business that competes with yours. Can they be fired?

Moonlighting—also called a side hustle—is having a second job in addition to regular employment. It’s not illegal, but it’s not a protected right either. The key question is whether a blanket company policy on moonlighting crosses into employee privacy.

Even without a legal agreement, employers have grounds for termination. If the second job presents a conflict of interest or if the employee compromises confidentiality or trade secrets an employer can act. Furthermore, if the second job impacts performance at the primary job, taking action based on performance issues is merited. A tired, chronically absent, or unavailable employee could seriously impact safety and productivity at your company.

On a Twitter post, you find out that an employee is encouraging activists to engage in protest activity against a project that you support. Can they be fired?

Typically, no. If the employee is posting on their own time, without using company resources, breaking the law, or affecting job performance, you generally can’t fire them for expressing their views. In most cases, you’ll have to agree to disagree.

However, the role of the employee in the organization can influence the direction. For example, it would be inappropriate for the CEO of a non-profit to campaign for a conflicting cause, or a legislative representative to publicly support members of the opposing party.

With ever-changing laws, companies should regularly review their policies to ensure they are not overly broad or at risk for an employee lawsuit. Policies must carefully balance an employer’s interests without limiting workers’ protected activities.

An employee comes to you concerned because she witnessed an incident where another employee and their spouse got into a physical altercation after work in the company parking lot. Can they be fired?

No, you wouldn’t want to fire the employee simply based on the reports of a second-hand witness. However, domestic violence is a serious issue and a leading cause of workplace death for women. Whether your employee is the alleged abuser or the victim, take the report very seriously.

Alongside an HR representative, have a conversation with the employee about the incident and make your concerns known. Prepare to speak to available services such as counseling or your employee assistance program, if you have one. Depending on the role the employee played in the altercation, they may need flexibility to deal with the issue.

Keep in mind that employees may not want to discuss personal issues, and that’s okay, too, as long as it’s not affecting the workplace. To protect employment rights of victims of domestic and sexual violence, the State of Hawaiʻi enacted Act 206 in 2011. (See: FAQ Sheet for Act 206 PDF)

Related: Employment Rights for Victims of Domestic Violence

Employers need to be informed about the impact of domestic violence on the workplace. However, they are not expected to be experts. The interpersonal, safety, and legal issues around domestic violence should be left to trained professionals. The employer’s obligation is violence prevention:  establish a team to address the issue internally, develop compliant policy, provide training, and build awareness.

You suspect an employee is abusing alcohol. They have a high degree of absenteeism that doesn’t seem to follow a pattern. They often appear tired and irritable and at least once were caught napping in the break room. At company parties, they are often highly intoxicated. Can they be fired?

No. You should never assume the cause of an employee’s absenteeism or try to diagnose a substance abuse problem. Address performance issues only. If the employee discloses alcoholism—a condition considered a disability—they may qualify for protections under the ADA Amendments Act (ADAAA) or the Family and Medical Leave Act (FMLA). These protections include time off for Alcoholics Anonymous meetings or a rehabilitation program.

If the employee appears intoxicated at work, then that is a different matter that also requires careful attention. See: Drunk at Work: What HR Can Do About Employees Drinking on the Job (Society for Human Resources Management). It is critical to apply your written substance abuse policy consistently and fairly.

This article is for informational purposes only and does not constitute legal advice. Readers should first consult their attorney, accountant or adviser before acting upon any information in this article.