By Sandro D. DiMercurio
Hearing stories of people being terminated for their off-duty conduct or social media posts seems to be more common than ever before. In a day in age where technology and electronic media is at the forefront of people’s lives outside of work, most individuals’ private activities are being recorded and/or posted to different social media platforms for the world to see. Prior to social media, an employee’s behaviors outside of work, whether good or bad, were for the most part, unknown to their employer. Today, employers are regularly notified of its employee’s off-duty conduct, and thus are faced with difficult decisions as to whether it can lawfully discipline its employee’s for their racy activities outside of the office.
The general rule is that private sector employees can be lawfully terminated by their employer for his or her behavior outside of work. Private sector employees do not share the same Constitutional protections as employees in the public sector. The First Amendment right to free speech applies to government reprisal only, and private employers have the right to discipline employees for their off-duty conduct or behavior online.
Private employers have broad discretion to discipline employees for things they say and do outside of the workplace. Unlike some states, Michigan doesn’t have a particular state statute that safeguards an employee from his or her inappropriate behavior during personal time. In fact, private sector employees are subject to at-will employment doctrine, meaning they can be fired for their activity on social media, any other reason, or no reason at all, as long as it is not for an illegal reason (race, disability, sex, age, religion, nationality, etc.). This is true even if their performance at work is exemplary.
Therefore, a private employer can generally terminate your employment for inappropriate behavior outside of the workplace, assuming such termination does not violate and other law(s) of the State of Michigan.