I was recently presented with the following situation. A camp was emailed a screenshot of a highly inappropriate and discriminatory comment made by a counselor in a public social media post. The counselor was wearing a shirt with the camp's logo in his profile picture. Someone who saw the post realized that the poster was an employee of a sleepaway camp, and emailed the director essentially asking: "How can you employ this person?" After seeing the post, the director agreed.
During the employment application process, one of the first things camps do is check applicants’ social media profiles. It’s become standard job-search wisdom to ensure that all public-facing content is professional and treated as something that potential employers will explore before an interview. But what happens after the counselor is hired? Can camp respond to an inappropriate social media post with disciplinary measures? Can camp react to other misconduct that takes place entirely outside of work?
In an employment at-will relationship, an employer can end the employment relationship for any lawful reason -- which means any reason that is not protected by applicable law. When it comes to behavior outside of work, let's consider a few potentially applicable protections:
Protected Labor Speech. Certain speech is protected by the National Labor Relations Act, such as speaking out about working conditions, wages, and union activity. If a social media post concerns these types of topics, then it's protected.
Lawful Off-Duty Activity. A few states have laws that prevent employers from taking negative employment action in response to "lawful off-duty activities." These laws were passed when marijuana became legal so that employees wouldn't be fired for smoking after work and on their own time. However, some of the laws are drafted broadly to protect other lawful behaviors, such as smoking cigarettes, drinking alcohol, etc.
Fair Chance Laws: When it comes to arrests and convictions, state "fair chance" and "ban the box" laws, which are increasingly common, tend to regulate how employers can react. While arrests and convictions are the focus of those laws, engaging in the underlying illegal behavior is not protected.
Political Expression. Some states have laws protecting political expression outside of work. Note that, while the First Amendment protects speech from government action, it does not protect speech from the actions of private employers. Remember the bicycle rider who gave President Trump's motorcade the middle finger? Her Virginia-based employer separated her for doing so.
Personal Logins. A number of states prohibit employers from mandating that employees provide login information to their personal social media accounts. That certainly makes sense. Indeed, even where the law is silent, this feels like too intrusive of an employment policy – and certainly not one that I’ve ever drafted. But when it comes to the posts and images that anybody can see, employers have far more latitude.
So where does this leave us? Can employers regulate employee behavior outside of work? The answer is yes, as long as the behavior is not protected by applicable law. When employees post offensive language or discriminatory public-facing content, employers can typically take disciplinary action -- as long as the content isn't protected. When employees engage in other misconduct outside of work, camps can likewise react -- they just have to carefully navigate the overlapping web of state and federal employment laws to ensure that the underlying behavior is not subject to protection.