Can You Be Terminated for Out-of-Work Conduct?

An employee’s off-duty conduct is generally off-limits as far as employers are concerned, and an employer can’t terminate an employee for conduct outside work if that termination would amount to unlawful discrimination.

However, exceptions exist if the misconduct outside the workplace poses a serious risk to the employer’s business.

• In employment-at-will states, employers can terminate an employee for a good reason, a bad reason, or no reason at all.
• If an employment contract is in place, it likely outlines the specific types of conduct for which an employee can be terminated. So the rights and obligations of the employer and the employee are set contractually.

In many cases, though, no clear-cut guidelines can help determine the course of the action, especially for off-duty, private deeds with moral or political overtones that aren’t rightfully the company’s concern. However, the employer can terminate if the employer can establish a logical, if not obvious, connection between an egregious off-duty behavior having some bearing on their job (e.g., substance abuse that impairs the ability to perform work,) posing a reputational risk, damaging the employer’s interests, portrays the employer in a poor light (e.g., the employee was wearing a uniform or sporting the employer’s logo ) or is incompatible with the employee’s duty (e.g., a poorly worded social media post painting the employer or the industry in a poor light, or inciting hatred and hostility.) The devil is always in the detail.

Idea for Impact: Any out-of-hours misconduct with some sufficient or necessary association with the employment is grounds for termination. Best to know the employer’s policy on what makes up a breach of the company’s values, public position, and policies.