Employers grapple with workers’ off-duty behavior

Excerpted from a McDermott Will & Emery blog by Ron Holland and Daniel R. Foster

Employees gathering with friends, expressing their political views and posting about these things on social media have created for employers an increasingly urgent question: When the people engaging in unsafe or politically charged behavior are your employees, and the conduct happens off the clock, is it appropriate or even possible to discipline them?

Coworkers adding each other on social media to keep in touch while they work from home. The politicization of COVID-19 safety measures, and the divisive conversations on race and social justice sparked by George Floyd’s death this spring. In recent months, this cultural storm has reframed previously banal behavior as having high stakes in workplaces.

Employees gathering with friends, expressing their political views and posting about these things on social media have created for employers an increasingly urgent question: When the people engaging in unsafe or politically-charged behavior are your employees, and the conduct happens off the clock, is it appropriate or even possible to discipline them.

“With COVID and the social justice issues that are out there, we’re finding more and more employers are wanting to regulate off-duty conduct,” said Ron Holland, who represents employers as a partner at McDermott Will & Emery LLP.

“If [an] employee has posted photos where they’re violating … a mask ordinance or social distancing rules, can you tell the employee not to come to work that day, for the safety of others? Do you have to pay them?” he asked. “We’re starting to see these really significant questions, which will survive long after COVID.”

“Companies realize their workers are part of their brand and their image,” said Chris Foster, another partner at McDermott.

“Whenever people make outrageous comments on social media or happen to be caught engaging in conflict with police or neighbors, there are a lot of more flash points,” he said. Media reports will often include “a mention of who they work for, and then there are follow-up efforts directed at their employers and maybe even their spouse’s employers,” Foster said.

You can read the full story here.