Private Employers and Employee Facebook Gaffes [Revisited]

[Post by Venkat Balasubramani]

I posted about a Wall Street Journal article highlighting supposed legal landmines facing private employers who discipline their employees for Facebook gaffes. (“Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?“) I asked people to enlighten me if there were any such landmines, and someone did just that (thanks Andrew Oh-Willeke).

It turns out that several states have laws that restrict an employer’s ability to fire an employee for lawful off-duty conduct. (Here’s a 2008 survey from the National Conference of State Legislatures: “Employee Off-Duty Conduct.” It’s amazing how many of the statutes expressly cover tobacco products!) The California Labor Code protects employees from discipline or firing based on their “lawful conduct during nonworking hours away from the employer’s premises.” (Cal. Lab. Code §§ 96(k) and 98.6.[5].) A Colorado statute also protects employees from adverse employment decisions based on their engagement in “lawful activities off the premises of an employer during nonworking hours.” (Colo. Rev. Stat. § 24-34-402.5.) (The Colorado statute was known as the “Smokers’ Rights Statute.”) The Colorado statute contains an exception where the employer can prove the restriction which the terminated employee violated:

(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or

(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

The Colorado statute looks fairly broad. I did not come across any cases involving employees terminated for online activity. One case involved an employee who was terminated for writing a letter to the editor which was critical of his employer. (Marsh v. Delta Air Lines, 952 F. Supp. 1458, 1462-1463 (D. Colo. 1997).) The court denied the employee’s claim, find that writing the letter was contrary to the implied duty of loyalty owed to the employer. In rejecting the employee’s claim, the court noted:

by providing exceptions to the statute’s general rule, the legislature indicated that it did not intend this privacy statute to provide a sword to employees thereby allowing employees to strike indiscriminate public blows against the business reputation of their employer.

Interestingly, both the California and Colorado statutes are tied to activity not on “the premises” of the employer, a concept that has become amorphous, as companies engage in activities online.

There are also state statutes which are intended to protect employees from being fired when they engage in political activity. Finally, an at-will Facebook firing may not constitute termination for cause, which can affect the terminated employee’s eligibility for unemployment benefits (and a corresponding increase in the employer’s unemployment insurance rate).

Previous post: “Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?

See also:

The Blogosphere: Worker Rights and Employer Responsibility” (for an overview) (July 2007)

Akin Gump Chair Hits Partner’s Personal Blog Post on ‘Ugly’ Indian Prayer” (ABA Journal) (Jan. 19, 2011)

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