Return to Work Virtual Toolkit for Employers: Off-Duty Conduct

Key Takeaways | Return to Work Virtual Toolkit for Employers | Off-Duty Conduct: COVID-19 and Social Media Ranting—What’s an Employer to do?


Many employers who recently reopened are now facing a new challenge—employee off-duty conduct. At stake is both workplace and customer safety as well as the company’s reputation. Our recent webinar discussed different scenarios that employers are likely to face and how to practically navigate and mitigate any potential risks when responding to off-duty conduct issues.

View the full webinar here.

In Depth

Hypothetical #1:

You run an essential business manufacturing company in Naperville, Illinois, that is currently in Phase 4 of COVID reopening that bans gatherings of more than 50 people. Iowa allows large gatherings with no restrictions. It gets brought to your attention that over the weekend John Smith from the maintenance group attended a political protest in Iowa with 150 other people. John is set to return to work on Tuesday. Do you make John quarantine for two weeks before returning to work?

What is your opinion on whether you would need to pay John if he were exempt in the event that you required him to quarantine?
This depends on a few things. If the employee is exempt and is working remotely during quarantine, then he/she should be paid. If the employee is exempt and not working remotely during quarantine, then he/she should be paid for the full salary for any week in which the employee performs any work. Assuming that the employee is not entitled to FFCRA paid leave, it would be permissible to withhold pay for any week in which the employee performs no work.

Doesn’t FFCRA require two weeks’ pay for quarantine mandated by the City of Chicago under your example? Is it not required in Naperville if the employee is forced to quarantine?
The Naperville example was meant to illustrate the difference between the City of Chicago, which has a mandatory 14-day quarantine for individuals traveling to Chicago from certain states, and Naperville which has no such mandatory quarantine. You are correct that any quarantine should consider whether the employee is entitled to paid leave under the FFCRA or other applicable laws.

What about commuting scenarios, where employees work in one state and live in another, traveling back and forth on a daily basis?
This will depend on the specific state and that state’s restrictions for quarantine related to travel from outside states. If, for example, the employee lived in Wisconsin and commuted to Chicago every day, then the Chicago order would mandate a 14-day quarantine. The commute might also require varying obligations regarding the wearing of masks while driving or when entering and exiting the vehicle or the number of people in a car.

Are racist statements protected as “political” speech/activities?
Generally speaking, no. Racist comments are not covered as political speech/activities, and employers can discipline employees for such conduct.

Can an employer provide that an employee cannot use a competitor’s product? Can the employee be fired for a Facebook picture that shows the employee using the competitor’s product?
This will depend on the specific facts of the situation, but in general, we would not recommend that employers discipline employees for using a competitor’s product.

An acquaintance returns to New York from Florida and returns to work immediately (no quarantine) in the grocery business. What liability/responsibility does the employer have to determine the facts/enforce quarantine?
Once brought to the employer’s attention, the employer should investigate to determine whether the employee did travel to Florida. Assuming that the employee did travel to Florida, he/she would be subject to a 14-day quarantine per the New York guidance.

Hypothetical #2:

You recently told your employees that your company, ABC Corp., is going to make a concerted effort to promote diversity in the workplace, including by seeking to promote women and minorities. An employee, Josephine, tells you she is offended by her colleague John’s recent Facebook post: “ABC Corp. says it will only promote women and minorities, even though white men like me are almost always more qualified. Isn’t that discrimination?” Can you discipline John for disparaging ABC Corp. online? What about for offending Josephine?

What about statements that do not align with a Company’s mission or stance on particular issues? Can we discipline if such statements are stated outside of work on public channels?
This will depend on the specific statement at issue. For example, a Company could potentially discipline for racist public statements that are against a Company’s mission or stance on a diversity initiative. For a statement that is generally disagreeing with a general mission statement, you will need to consider whether the statement violates any of your current policies and whether the employee’s conduct is lawful, in which case it may be protected by certain states’ laws.

You recommend a “narrow” policy. Can you provide an example of a policy that is not narrow?
A policy that attempts to regulate off-duty political activity or all lawful off-duty conduct is likely too broad and in violation of multiple states’ laws.

Is social media (e.g., Facebook or Twitter, etc.) a “lawful product”? Or is use of it “lawful conduct”?
It is lawful conduct to make social media posts, but keep in mind that some states that prohibit adverse actions for lawful conduct outside of work also have carve-outs for actions that are against business-related interests (for example, North Dakota and Utah).

What if the employee says All Lives Matter, rather than Black Lives Matter?
On its face, this comment is unlikely to violate a typical employer’s harassment or anti-discrimination policy.

What about intolerance, racist or discriminatory activity or posts? Based on some early examples, some companies are acting decisively and swiftly.
We are generally seeing employers discipline employees, including up to termination, for making racist or discriminatory comments or social media posts.