What employee off-duty conduct can employers regulate in the age of COVID and protests?
According to a recent McDermott Will & Emery webinar, the answer to that question is usually, "It depends."
Here’s a hypothetical: You run an essential business in Naperville, Illinois, a city 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 John Smith, one of your employees, attended a political protest in Iowa over the weekend 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?
Thus began McDermott Will & Emery’s webinar, “Off-Duty Conduct: COVID-19 and Social Media Ranting—What’s an Employer to Do?” For an hour, members of McDermott’s employment group discussed topics around a question that is likely at the front of mind for many employers: As employees start slowly returning to work, what happens if an employee puts the safety of customers and their fellow employees at risk or hurts the company’s reputation outside of work hours?
Related: Risk vs. reward: Safely weaving social media into the workplace
“There are a lot of moving pieces here,” said associate Brian Mead, pointing out that state laws regarding off-duty conduct and discipline are wide-ranging. Some states, like Alaska and Vermont, have no laws regarding off-duty conduct. At least 30 states do protect an employee’s participation in politics, preventing employers from taking adverse actions based on the employee’s political affiliation. Four states protect any lawful conduct during nonworking hours, although some have caveats regarding avoiding conflicts of interest.
Dealing specifically with COVID-19, things get more complicated when considering the variations of guidelines in different states. Not all states have mask mandates, and numbers of people permissible in gatherings also differ. Local orders can muddy the waters even further. Mead used the example of the 14-day quarantine for travelers from certain states coming into Chicago. An Anti-Retaliation Ordinance accompanies employees obeying a quarantine order, preventing employers from taking adverse actions against them.
Partner Ron Holland recommended drafting an off-duty conduct policy to protect employees, and to draft it narrowly. “You don’t want to implement that in a rash way. You need to think about how narrowly to draft that policy, what it’s going to apply to, and then think through the ramifications. Can this policy be enforced? Is it practical? What is the enforcement mechanism? And can you be consistent?
“Enforcement truly can be fraught with peril,” Holland summarized.
In spite of that, Holland said their clients are telling them that their workforces want these policies and the risks of not having one run from morale issues to total shutdowns and possible litigation.
Associate Abigail Kagan tackled the thorny questions employers have about social media: Are employers allowed to regulate their employees’ social media activities? Are they ever required to do so? And if an employer oversteps those boundaries, accidentally or otherwise, what are the likely repercussions?
“The answer to all these questions is usually, ‘It depends,’” she said.
For example, if an employee is posting on Facebook during business hours, the employer could step in and control that activity if the employee is supposed to be working at the time. However, if the employee is posting on his/her own time—including while on a break—grounds for controlling that activity might not be so easy to establish.
Even if an employee has been given carte blanche to say whatever they want on social media to put the company in a good light, that employee can still be subject to certain policies that govern their ability to post on the company’s behalf. “It all comes back again—do you have a policy in place and what has been communicated to that employee?” Kagan said.
Certain social media posts concerning workplace safety, pay disparities, and allegations of harassment are considered protected content. Employers can investigate the truthfulness of claims made in these posts, but they cannot censor or otherwise retaliate against the employees for the posts. Unprotected content includes anything violating company confidentiality or other written policies, and posts containing disparaging statements or statements made without authority. In those cases, Kagan said, companies can take appropriate disciplinary measures.
What about John Smith, the hypothetical employee traveling from Illinois to Iowa to attend a political protest? Mead, arguing on behalf of the employee, said, ”Mr. Smith should be free to do what is legal in other states.” He noted that the employee didn’t violate any guidance regarding COVID activity and should be permitted to return to work. Holland, arguing as the employer, disagreed. “I’d interpret the law more broadly,” he said, saying that the employee being at a gathering of 150 people does violate the law in his home city.
“But broader than that, who cares if it’s illegal?” Holland continued. “I have a general duty under OSHA to keep my workplace safe, to recognize a possible hazard and protect the rest of my employees. I’d have no problem quarantining him.”
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