It’s no surprise that employers need to properly address any on-duty misconduct by employees, but we often field questions from clients wondering what to do about activities that occur while their employees are off-duty. Particularly those who are active on social media channels, as well as those who participate in protests or rallies.

Whether your business serves the private or public sector, or a specific industry, certain actions your employees engage in are protected, but some are not. Do you know the difference? More important, do you know what to do in the event an issue arises?

Which Standard Applies?

When considering discipline for the off-duty actions of employees, it’s important to remember the different standards that apply depending on factors such as whether the employee works for a public or private employer, or whether the employee has a written employment agreement.

Just Cause – Some employees are protected by contract or by laws which require “just cause” for discipline or termination.  As the term suggests, under this standard sufficient “cause” is required for termination. After the enactment of Act 10, “just cause” standards are utilized less frequently in the public sector, but still apply in many cases.  For example, statutory “just cause” standards still apply for police and fire departments.  Also, in the public sector, off-duty conduct of “role models” (i.e. teachers, police, fire and emergency personnel) is subject to greater scrutiny.

Arbitrary and Capricious – Since Act 10, language indicating that employees may be dismissed for “arbitrary and capricious” behavior has become more common in employee handbook and teacher contracts.  This is a lower standard which generally permits discipline as long as the employer is not acting unreasonably or without rational basis..

At Will – In the absence of an employment agreement or statutory protections, most employees are employed on an “at will” basis. ”At will” status generally enables an employer to terminate employment for any reason or no reason at all, as long as the reason is not discriminatory or otherwise unlawful. For example, even “at will” employees are still afforded certain rights under state and federal law, such as the Wisconsin Fair Employment Act and the federal Civil Rights Act.

Federal and State Laws

According to Title VII of the Civil Rights Act of 1964: “It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.” In today’s geopolitical climate, it’s important to note that the federal government offers no protection to private employees expressing political views in the workplace.

The Wisconsin Fair Employment Act stipulates that: “No employer, labor organization, employment agency, licensing agency, or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, use or nonuse of lawful products off the employer’s premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters.” Wisconsin law does not prohibit discrimination based on an employee’s political views.

Criminals Have Rights, Too

As the Wisconsin Fair Employment Act indicates, discrimination based on arrest and/or conviction records is prohibited. Notably, employment discrimination because of an arrest record includes, but is not limited to, requesting an applicant or employee to supply information on an application regarding any arrest record of the individual except a record of a pending charge, except that it is not employment discrimination to request such information when employment depends on the bondability of the individual and the individual may not be bondable due to an arrest record.

Notwithstanding, the prohibition against discrimination based on an arrest or conviction record, several important exceptions apply. For example, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity. In addition, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensing, any individual who: (1) has been convicted of a felony, misdemeanor or other offense the circumstances of which substantially related to the circumstances of the particular job or licensed activity; or (2) is not bondable under a standard fidelity bond or an equivalent bond where such bondability is required by state or federal law, administrative regulation or established business practice of the employer.

Several industry-specific exceptions also apply. For example, a school district’s refusal to employ or termination of an individual who has been convicted of a felony is not unlawful.

Freedom of Speech

When it comes to freedom of speech, the First Amendment limits only the government’s ability to suppress speech from individuals or groups. Private sector employers will not violate an employee’s First Amendment rights if they discipline them for off-duty speech, but other considerations and laws still apply.

For private employers, your employee handbook, collective bargaining agreement or employment contract may set standards regarding off-duty conduct (i.e. just cause standard, non-arbitrary or non-capricious standard, progressive discipline) that must be followed and the speech may not justify the discipline. As we mentioned previously, private sector “at-will” employees have fewer protections, so no notice or “cause” is required for dismissal, but some limits apply.

Speech about workplace conditions and terms of employment, even on social media, may be seen as protected “concerted activity” under the National Labor Relations Act (NLRA), and, potentially, whistleblower laws. This covers more than just union activity, but includes concerted activity undertaken to discuss wages, hours and working conditions. The National Labor Relations Board (NLRB) gives wide latitude to employees, even if some profane or disparaging language is used.

Even if a confidentiality policy is violated by posting sensitive wage or other employment information, the NLRB is likely to find that the employee’s right to discuss the matter outweighs the employer’s interest in maintaining confidentiality. However, communications about trade secrets or proprietary information not related to wages, hours, or working conditions are generally not protected.

A high degree of latitude is given to employees to criticize wages, hours and working conditions, even if the statements are not 100% factually accurate or there are negligent mistakes of fact, but typically not for intentional or maliciously false statements about the employer. For example, statements prejudicial to the employer’s reputation may be protected, while clearly disloyal statements about an employer may lose the NLRA’s protection.

Before leveling employee discipline or terminations surrounding speech in the private sector, we recommend that you:

1. Consider the possibility that the employee’s speech may implicate legally protected characteristics (such as race, gender, religion, etc.) to try to avoid claims of discrimination.
2. Be fair and even-handed in disciplining for off-duty speech.
3. Be cautious in disciplining an employee when actions do not implicate the employer or directly affect the employer’s reputation and consider whether the speech impacts the genuine interests of the employer because a legitimate non-discriminatory reason for discipline can be used as a potential defense to discrimination claims.
4. Keep in mind that depending on the statements and context, not taking action to stop offensive speech may lead to a hostile work environment for other employees or be seen as allowing discrimination by one employee against another.

For public sector employers, NRLA protection for off-duty speech does not apply, but state and federal discrimination laws will apply.  Also, check your “cause” standard included in your collective bargaining agreement, individual employment contract or employee handbook. In addition, First Amendment rights come into play, but it does not protect every public employee.

There are three steps that must be satisfied for public sector employee speech to be protected under the First Amendment, including:

1. The speech is not made pursuant to an employer’s official duties.
2. The speech addresses a matter of public concern.
3. The employer’s interest in promoting efficiency of the public service it performs does not outweigh the interests of the employee in speaking freely.

Public-sector employers should be cautious when disciplining employees based on speech, especially speech occurring off-duty, and consult their legal counsel to avoid violating the First Amendment.

If you have any questions about off-duty conduct in your workplace, please contact Mark Olson at molson@buelowvetter.com or 262-364-0256; Claire Hartley at chartley@buelowvetter.com or 262-364-0260, or your Buelow Vetter attorney.