Federal laws related to employee behavior include the National Labor Relations Act (discussed below) and the Occupational Safety and Health (OSH) Act (discussed in Module 14: Safety, Health, and Risk Management), as well as the laws that apply to human conduct in general. However, an employer’s ability to control or discipline an employee’s behavior outside the workplace is typically regulated by state law. Thus, it is essential to know the laws of your state.

In general, state laws variously protect employee’s right to participate in political activities, to volunteer for civic organizations and to smoke or drink outside working hours. The laws also detail the circumstances under which an employer can restrict or modify policies based on lawful off-duty behavior.

Employee Social Media Use

Employee use of social media may or may not be protected as “concerted activity” by the National Labor Relations Act. The National Labor Relations Board (NLRB) notes that an employee has “the right to act with co-workers to address work-related issues. Examples include: talking with one or more co-workers about your wages and benefits or other working conditions, circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions, openly talking about your pay and benefits, and joining with co-workers to talk directly to your employer, to a government agency, or to the media about problems in your workplace.”^[1]

An employer “cannot discharge, discipline, or threaten [an employee] for, or coercively question you about,” this type of activity. However, making statements that are “egregiously offensive or knowingly and maliciously false,” or “publicly disparaging your employer’s products or services without relating your complaints to any labor controversy” is not protected concerted activity.

SimplicityHR reports that claims of wrongful termination (retaliation) due to online remarks is “the leading type of claim filed with the Equal Employment Opportunity Commission.”^[2]

The California Peculiarities Employment Law Blog notes that using social media in hiring decisions can expose an employer to liability.^[3] California’s AB 1844 prohibits employers from requesting an applicant’s log-in information, asking applicants to “friend” other employees, or asking an applicant’s “friends” to disclose what the applicant has posted on social media. Although employers are not specifically prohibited from accessing publicly available information, the author’s advise against it, noting it could be a “discrimination trap,” since social media reveals personal information that would be illegal to ask during the hiring process.