Employers Should Be Mindful of “Lawful Activities” Statutes When Making Employment Decisions Based on Employees’ Off-Duty Conduct

In response to white nationalist rallies in Charlottesville, Virginia, social media users are asking their followers to identify rally participants, and urging the participants’ employers to fire them.[1] At least one white nationalist participant lost his job at a restaurant in Berkeley, California, based on his participation in the rallies.[2] Despite the fact that a great majority of employees in the United States are “at-will” employees,[3] meaning they can quit or be fired without warning for any non-discriminatory reason, employers should carefully consider the legal consequences of terminating an employee for engaging in extremely distasteful, yet legal, conduct.

    Four U.S. states—Colorado, California, New York, and North Dakota—give statutory protection to employees who engage in lawful activities.[4] The Colorado statute generally makes it illegal for an employer to terminate an employee because that employee engaged in any lawful activity off the employer’s premises during nonworking hours, and gives aggrieved persons the right to bring a civil lawsuit. The California, New York, and North Dakota statutes extend the protections to adverse employment actions other than termination.

    In these states, an employee’s mere association with a political group that the employer finds repugnant, or participation in fringe but otherwise political activities, is protected. However, if an employer has a good faith reason to believe that the employee’s specific conduct was unlawful—for instance, if evidence shows the employee committed a crime while engaging in political activities—and makes an employment decision based on such a good faith belief, it may have sufficient grounds to take action.

    Before disciplining or terminating an employee based on non-work conduct, employers should confer with an employment attorney to get a full assessment of the legal risks involved.

[1] Alyssa Newcomb, Twitter Users Are Outing Charlottesville Protesters, NBC News (Aug. 14, 2017), http://www.nbcnews.com/tech/social-media/twitter-users-are-outing-charlottesville-protesters-n792501.

[2] Maura Judkis, Charlottesville White Nationalist Demonstrator Loses Job at Libertarian Hot Dog Shop, Washington Post (Aug. 14, 2017), https://www.washingtonpost.com/news/food/wp/2017/08/14/charlottesville-white-nationalist-demonstrator-fired-from-libertarian-hot-dog-shop/?utm_term=.4a95e9649f8f.

[3] Montana is the only U.S. state that has modified the employment-at-law rule. See Mont. Code Ann. §§ 39-2-901, et seq.

[4] See CA Labor Code § 98.6; C.R.S. § 24-34-402.5; N.Y. Labor Code § 201-d; N.D. Cent. Code § 14-02.4-03.