Can Private Employers Regulate Employees’ Off-duty Conduct In California?

More than ever, an employee’s activism and social media posts can prove quite challenging for employers. Their reasons often ranging from an employer not wanting to be lumped with a particular viewpoint or because the employee’s stance goes against the employer’s public image or ethics. In today’s society, employers are increasingly concerned about their employee’s actions. Mainly due to our current “cancel culture,” where it is a common practice to withdraw support for a company that has done something that may be considered objectionable.

Even if the employer did not authorize the employee’s actions, companies can still feel the negative repercussions. And unfortunately, there is no explicit solution to this dilemma. So, what is an employer to do in these situations? In this blog post, we will discuss some of the issues employers face when dealing with off-duty conduct and what rights employers and employees have in California?

Can Employers Lawfully Monitor Off-Duty Conduct?

In California, like many other states, there are specific laws that protect an employee’s right to engage in off-duty conduct that is lawful. These laws also provide monetary relief to those employees whose employment is adversely affected in violation of these regulations. However, even though it seems these laws are meant to protect an employee’s actions, it is crucial to understand that these laws do not protect all types of employee’s off-duty conduct.

If an employee’s off-duty conduction is harmful or potentially hurts an employer’s business interests or involves some crime, it can result in a valid basis for terminating the employment. Even so, this is often decided on a case by case basis, and specific facts need to be considered before making a final decision, including legal interests and business decisions.

Take, for example, a recent viral video that showed a Franklin Templeton employee, Amy Cooper, reporting to local law enforcement that an “African American man” was frightening her. Yet, all the video showed was Christian Cooper, a bird watcher asking Amy Cooper to put her dog on a leash per the rules of Central Park. This video resulted in an uproar on many social media platforms, accusing Amy Cooper of lying to the police because of racial discrimination. And even though Amy Cooper’s action had nothing to do with her job duties or work performance, Franklin Templeton quickly terminated her employment, citing their company’s “zero tolerance for racism.”

Can Employers Lawfully Discipline Decisions Based on Off-Duty Conduct?

One popular misconception that many individuals have is they feel that because the First Amendment protects their free speech, it is illegal for an employer or company to fire an employee based on something they said. Unfortunately, this is not how this Amendment works. As the First Amendment, typically, does not apply to private employers.

However, some laws that do apply to California’s private employers, include the following:

• California Labor Code section 96(k): This law protects employees who are terminated for “lawful conduct” that occurs during hours away from the employer’s premises and not working. Generally, this law applies to lawful off-duty political pursuits.
• Labor Code Section 1101 bars an employer from adopting, making, or enforcing any regulation that prevents an employee from taking part in politics or becoming candidates for public office. In addition, it prevents the employer from controlling the political activities of their workers.
• Labor Code Section 1102 bans an employer from influencing or attempting to coerce their employees through the threat of discharge to refrain from following any particular course of political action or activity.

Taken together, these provisions prevent an employer from directing the political activities of its employees. However, these regulations do not stop employers from limiting political and other non-work-related activities in their workplace. Additionally, employers can also prevent employees from posting content that makes viewers believe that the employee is speaking on behalf of the company. In these situations, an employer can take action against the employee, even if their conduct happens off-duty.

Employee’s Social Media Conduct

According to Article 1, Section 1 of the California Constitution, each citizen has an “inalienable right” to obtain and pursue “privacy.” When combined with Section 980 of the Labor Code, these laws are meant to protect an employee’s privacy on their personal social media platforms. While also prohibiting employers from asking employees for their log-in information and passwords. Yet, even though these laws provide some sort of privacy protection for employees and their use of social media, it does not mean that an employee’s public social media posts are protected. If an employee begins posting content beyond their private followers, they waive their right to privacy. As a result, they can be disciplined for their posts, especially when these posts are not deemed to be related to their workplace issues, which are often protected by the National Labor Relations Act (NLRB).

What Employers Need to Ask Themselves Before Making Any Decisions About Off-Duty Conduct

If an employer has an issue with their employee’s off-duty conduct, they need to consider California’s applicable laws, the effects on the business, and the litigation exposure they may have to face. Looking into their past conduct and reviewing whether they have consistently applied these company protocols can also help them determine the likelihood of the employee succeeding in their legal actions.

During these “polarizing times” that we are experiencing, it should come as no surprise that disciplining off-duty conduct has become incredibly challenging and complex. Not only does the business have to heavily weigh the legal problems that can result in pursuing these actions against their employee, but they also have to take into account the potential loss of sales and customers if this issue becomes common knowledge. In some cases, companies can even suffer when they decide not to take any action against the employee for their conduct.

For these reasons, if you are considering your employee’s off-duty conduct, you need to contact an experienced employment law office today. These lawyers can provide you with the information you need to be able to carefully explore your options while helping you understand all the issues and problems you may have to face. Do not wait any longer; call our office at 916-877-4227.