By: David S. Levine
Given the charged political climate and 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, a prominent Wisconsin employer, Manpower Group Inc., terminated the employment of one of its in-house attorneys, after she was filmed threatening to call Immigration, Customs, and Enforcement (ICE) on an opposing fan at a Milwaukee Brewers baseball game.
This incident provides a useful opportunity for employers to revisit their policies and practices with respect to employee off-duty conduct. In the article that follows, we outline the facts of the Brewers incident, briefly discuss the legal framework in Wisconsin, Illinois, and other jurisdictions with respect to off-duty conduct, and offer practical tips for employers navigating similar challenges going forward.
“Let’s Call ICE”
In a recent playoff game between the Milwaukee Brewers and visiting Los Angeles Dodgers, an intoxicated Dodgers fan started videorecording 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 they lawfully respond to employee off-duty conduct that affects their 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. These 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 termination of this employee’s employment therefore likely did not violate the Wisconsin statute, as the individual does not appear to have been terminated due to her use of a product.
Much like the laws in these Midwestern neighbor states, under the Illinois Right to Privacy in the Workplace Act (the “Act”), employees ordinarily cannot 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 the employee submits the information in writing or gives the employer written consent, employers are also ordinarily prohibited from keeping records of an employee’s associations, political activities, publications, communications, or nonemployment activities.
Other states offer greater employee protections. In Colorado, for example, employers ordinarily cannot restrict an employee’s engagement in any lawful off-premises activity during nonworking hours, unless the restriction relates to a “bona fide occupational requirement,” 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 the employee’s “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 employee. In addition, employers should consider taking the following steps to address these issues going forward:
- Develop Policies: In employee handbooks, employers should not only refer to the at-will nature of an employee’s employment, but handbooks should also typically address off-duty conduct (e.g., by stating that certain policies may apply to off-duty, off-premises conduct when that conduct interferes with work performance). In addressing these issues, employers must of course ensure that any restrictions comport with applicable law.
- Train Employees: Besides written policies, trainings should also remind employees that their conduct—even off duty and outside of the workplace—may result in discipline. As noted, the employee at issue in the Wisconsin case was an attorney and likely knew that she could be disciplined for off-duty conduct. But periodic reminders through annual trainings and the like can reduce the likelihood of these incidents.
- Respond Appropriately: When an employer does learn of a controversial action by an employee, the employer may feel pressure to respond quickly (and sometimes rightfully so). But the response must always be thoughtful, considering how similar incidents have been addressed by the employer 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. Employers 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, after the law firm rescinded her job offer following her purported lawful conduct in connection with a pro-Palestine protest. The case remains pending.
Fox Swibel can be reached at any time to discuss these issues. Please contact Steve Brenneman, Kelly Smith Haley, David Levine, or the Fox Swibel attorney with whom you regularly work to discuss.
David S. Levine
David Levine is a partner in the Firm’s Employment Law and Litigation Groups. David’s practice focuses on representing clients in a wide range of labor and employment matters, as well as other business disputes. As part of his litigation practice, David regularly defends employers in class, collective, and individual actions involving claims under the FLSA, Title VII, ADA, and other federal and state statutes. David also often litigates individual and class actions involving data privacy issues, in particular cases under the Illinois Biometric Information Privacy Act (BIPA). He practices in state and federal courts and before administrative agencies such as the EEOC, DOL, and DOJ.
This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.