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In working with businesses, I find that many feel they have no recourse in dealing with problem employees that do things on their own time, outside of work, in which the company finds to be offensive and counter to their policies and culture.

Granted, there are some rights that employees have when “off the clock”, such as the right to discuss certain working conditions, protected under the National Labor Relations Act.

What an employee does not have the right to do is engage in activity outside of the job that can have a negative impact on the work environment or harm the reputation of the company.

I read recently a case upheld by the U.S. Court of Appeals for the Third Circuit involving a major airline that fired an employee for offensive social media posts.

The employee posted several comments on social media, including statements that too many “blue-eyed people” were reproducing with “brown-eyed people,” stating that “blue-eyed people” should “unite.” Another post suggested that Black people should be thankful that their ancestors were brought to the United States as slaves, claiming that the standard of living is higher here than in Africa.

The employee’s posts went viral, and other airline employees made internal complaints, stating that they did not want to work with her because of her racist posts. Additionally, members of the public posted collages of the employee’s posts to the airline’s public social media pages. In response to the outcry, the airline terminated her.

While employers may not be able to prevent employees  from engaging in concerted activity by discussing terms and conditions of employment covered under the NLRA, this case makes clear that such rights do not extend to racist or otherwise discriminatory conduct.

Whenever I review an employee handbook, I look to see if a company has  comprehensive social media and electronic communication policies, making it clear that policies prohibiting discrimination and harassment extend to electronic communications.

If you have an employee handbook you want reviewed or are looking to have a handbook created, Marzano Human Resources Consulting has reviewed and created handbooks for many satisfied clients.  Contact us for a no cost initial consultation.


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