Given the charged political climate and the ubiquity of cell phone videos, employers are increasingly grappling with how to respond to employees’ off-duty conduct. In a recent example of this trend, prominent Wisconsin employer Manpower Group Inc. fired one of its in-house attorneys after she was filmed threatening to call U.S. Immigration and Customs Enforcement (ICE) on an opposing fan at a Milwaukee Brewers baseball game. The incident provides a useful opportunity for employers in Illinois and elsewhere to revisit their policies and practices concerning employees’ off-duty conduct.
‘Let’s Call ICE’
In a recent playoff game between the Milwaukee Brewers and the visiting Los Angeles Dodgers, an intoxicated Dodgers fan started video recording his taunts to surrounding Brewers fans. It was late in the game, the Brewers were losing, and the mood was solemn. While most Brewers fans ignored the taunts, one woman engaged with the (apparently Hispanic-presenting) Dodgers fan, eventually swatting at his camera and stating, “You know what? Let’s call ICE.”
The video went viral, and the Brewers fan was quickly identified as an attorney for one of Wisconsin’s largest and most prominent employers: Manpower. Within short order, Manpower placed her on leave, investigated the incident, and then terminated her employment. It issued a statement expressing its commitment “to maintaining a culture grounded in respect, integrity, and accountability.”
Off-duty Conduct Laws
This incident and others raise a common question for employers: How can you lawfully respond to employee off-duty conduct that affects your business? As described below, an increasing number of states have passed laws on this issue.
In several jurisdictions, such as Indiana, Minnesota, and Wisconsin (where the above incident took place), the law primarily protects employees’ use and consumption of lawful products, such as tobacco, prescribed medications, and (where applicable) marijuana. The laws often state that the protections apply to the use of these products only off duty, off premises, and to the extent that the use does not interfere with work performance.
Under the circumstances as we understand them, Manpower’s decision to terminate the attorney’s employment therefore likely didn’t violate the Wisconsin statute because she doesn’t appear to have been fired as a result of her use of a product.
Much like the laws in these Midwestern neighbor states, under the Illinois Right to Privacy in the Workplace Act, employees ordinarily can’t be disciplined for their off-duty, off-premises use of lawful products. But as with the other laws noted above, if their use of lawful products impairs their work performance, they may be subject to discipline.
Beyond the use of lawful products, moreover, the Illinois Act bars employers from requiring that employees share with them their passwords or similar information in connection with their personal online accounts. Under Illinois law, and unless employees submit the information in writing or give the employer written consent, employers are also ordinarily prohibited from keeping records of employees’ associations, political activities, publications, communications, or nonemployment activities.
Other states offer greater employee protections. In Colorado, for example, employers ordinarily can’t restrict an employee’s engagement in any lawful off-premises activity during nonworking hours unless the restriction relates to a “bona fide occupational requirement” or is “necessary to avoid a conflict of interest with any responsibilities to the employer” or under certain other limited circumstances.
In New York, similarly, employers ordinarily may not discipline employees because of their “legal recreational activities,” which are defined to include “any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.”
Employer Takeaways
As described above, employers analyzing the appropriate response to off-duty employee conduct must, at a minimum, consider the relevant laws governing the issue—and these laws will differ depending on the location of the employer and the employee. In addition, you should consider taking the following steps to address these issues going forward:
- Develop policies: Your employee handbooks should not only refer to the at-will nature of employees’ employment but also typically address off-duty conduct (e.g., by stating that certain policies may apply to off-duty, off-premises conduct when it interferes with work performance). In addressing these issues, you must of course ensure any restrictions comport with applicable law.
- Train employees: In addition to written policies, trainings should also remind employees that their conduct—even off duty and outside the workplace—may result in discipline. As noted, the employee at issue in the Wisconsin case was an attorney and likely knew she could be disciplined for off-duty conduct. But periodic reminders through annual trainings and the like can reduce the likelihood of such incidents.
- Respond appropriately: When you do learn of an employee’s controversial action, you may feel pressure to respond quickly (and sometimes rightfully so). But your response must always be thoughtful, considering how you have addressed similar incidents in the past, any applicable law or contract governing the question, and how any potential action may be perceived by clients, employees, and other stakeholders. You may consider enlisting legal and/or public relations professionals in crafting a measured, strategic, and defensible response.
- Consider federal law: Thus far, this article has focused on state law, but federal law can bear on these issues, as well. If the off-duty conduct implicates a protected characteristic, for example, that may affect the appropriate response. An Illinois attorney, for instance, recently sued a law firm for discrimination under Title VII of the Civil Rights Act of 1964 after it rescinded her job offer following her purported lawful conduct in connection with a pro-Palestine protest. The case remains pending.
As reflected above, when you take actions in response to employee off-duty conduct, you must consider a variety of sometimes competing interests and factors in determining the best course of action. And you must often do so on tight timelines. You should take steps now to ensure you’re ready when these incidents arise in the future.
David S. Levine is an attorney with Fox, Swibel, Levin & Carroll LLP in Chicago, Illinois, and can be reached at dlevine@foxswibel.com.