You weren’t snooping, but you’ve accidentally discovered that Marcie in sales is engaging in some pretty unsavory behavior outside of work. Can you terminate her over this, even though it wasn’t something she did on the clock?
This issue came to the forefront last year, when a number of people identified as having participated in a white supremacist rally were fired from their jobs as a result. People suddenly wanted to know: what are grounds for termination when it comes to your behavior outside of work?
New York, like many states, has at-will employment. This means that you can fire an employee for any reason you want, so long as it’s not one that is explicitly illegal. This includes employee behavior outside of work.
The Equal Employment Opportunity Commission states that you can’t fire people for belonging to a protected class. This means that you open yourself up to litigation if you fire someone for behavior related to their:
- Sex (including pregnancy, and sexual orientation, and gender presentation)
- National origin
- Age (40 or older)
- Genetic information or health history
This means yes, you can fire someone for attending a white supremacist rally, but you can not fire them for attending a Pride parade or for celebrating Naw-Ruz. Now, if they were spouting abuse while attending an event related to their national origin? That’s a different story. Abusive language is separate from the act of attendance. But know that you may end up needing to explain this in court.
If you are a government agency, the rules on terminating employees for their actions outside of work become a lot more stringent, because the First Amendment comes into play. Similarly, if your workplace is unionized, there may be specific rules in your negotiated contract about employee terminations.
New York State rules
The state of New York has a provision specifically protecting some off-duty conduct. Workers in New York cannot be fired for
- Legally using any consumable product, or
- Engaging in any legal recreational activity
These protections apply only if the employee in question is off duty, off the employer’s premises, and not using any of the employer’s equipment at the time. So you could not terminate an employee for drinking alcohol or smoking tobacco, provided they were doing so legally. Similarly, you couldn’t fire your employee for betting on horse races, taking exotic dance lessons, or golfing, even if you really hate golfing.
Once you’ve made a decision to terminate, don’t drag it out.
Our New York State Employee Termination Kit has all the paperwork you need conveniently assembled in one place so that you can get the ball rolling and move on to hiring someone new. Terminations can be confusing; don’t let them be any more complicated than they have to be.
For more information and insights into the laws, best practices and complexities around terminating employees, check out our resource page, A Complete Guide to Employee Terminations. It's an all-in-one page that includes thorough insights, instructions and plenty of links to other helpful resources.