Because social media users continue to post videos of people behaving badly, the most recent issue for companies is employee off-duty conduct that is no longer secret.

Recently, Sonoco dismissed an employee after a video surfaced of him berating an African-American woman at a neighborhood pool. After the video went viral, the company said it will not accept discriminatory behavior inside or outside of work. Reports of businesses disciplining or terminating their employees for outside-the-workplace conduct, particularly after it is posted on social media, are becoming increasingly common. In-house counsel at private companies are now being asked to weigh in on the repercussions of such conduct, including pressure from the public to take action. What can they advise the company to do when inappropriate employee behavior takes place outside the workplace?

Consider the following examples in Texas:

• A school teacher in McKinney was fired after posting her opinion about a viral video that showed a police officer pulling a gun on a 14-year-old African-American girl after responding to a pool party that had gotten out of hand. The teacher blamed “the blacks” for rising racial tensions and stated she was “almost to the point of wanting them all segregated. … Maybe the '50s and '60s were really on to something.”
• In Henderson County, Texas, a police officer was fired after a video he posted on social media went viral. While dressed in uniform, he used explicit language and described the difficulties associated with working as a deputy. He was terminated for “unprofessionalism” which “could not be tolerated.”
• A court reporter in Jefferson County was fired after posting a lengthy tirade on her social media account. In it, she opined that “being black” doesn't give anyone “the right to shoot people,” that protesters supporting the Black Lives Matter movement must not have jobs, and referred to the movement as “crap.”

Although these firings may be lawful in an at-will state such as Texas, there are still constraints on what type of online behavior warrants termination. Section 7 of the National Labor Relations Act protects any “concerted activities” that employees engage in to support one another in the workplace, whether or not a union is involved. Concerted activities can include anything from complaining about working conditions to publicly supporting political causes that may have a bearing on one's work life. However, this protection does not give employees free rein to misbehave on social media. Even when participating in concerted activities, an employee can lose the protection of the NLRA if the exhibited conduct is opprobrious. “Opprobrious” means “abusive, derogatory, insulting, offensive, or venomous.”

Unfortunately, the opprobrious line may be a tricky one to draw. When determining whether termination was warranted after offensive behavior on social media, courts look to the totality of the circumstances. For example, the way an employer has reacted to similar conduct in the past may influence whether termination is determined to have been permissible under the NLRA. Because there is no bright line, if in-house counsel learns about an employee exhibiting inappropriate behavior outside of the workplace, she should:

1. Consult with an employment law attorney or human resources expert before taking any action.

Although disciplining or terminating an employee for off-duty conduct often requires a judgment about the severity of the conduct, failure to act can also be problematic. If action is not taken, the employer might face complaints, charges or lawsuits from other employees for fostering a hostile work environment. It can also erode brand goodwill inside and outside the company.

2. Find out the details of the social media content.

Is the social media expression a protected, concerted activity? Is it opprobrious? Consider the totality of the circumstances. The NLRB uses a nine-factor test when reviewing social media cases: (1) any evidence of anti-union hostility; (2) whether the conduct was provoked; (3) whether the conduct was impulsive or deliberate; (4) the location of the conduct; (5) the subject matter of the conduct; (6) the nature of the content; (7) whether the employer considered similar content to be offensive; (8) whether the employer maintained specific rules prohibiting the content at issue; and (9) whether the discipline imposed was typical for similar violations or was proportionate to the offense.

3. Consider adopting a social media policy.

When drafting policies, be cautious. For example, employers may require employees to refrain from social media activity which represents the employee's own views as those of the employer (e.g., posting on the company's Facebook page) or reveals a company's trade secrets. Once again, however, it is unlawful for an employer to promulgate any policies which would infringe on an employee's Section 7 rights (e.g., picket sign with the company's logo or other concerted activities, including complaining online). Therefore, any company policy must carefully balance its interests against the worker's protected activities.

It is increasingly common to record bad behavior on a cellphone or impulsively “tweet” in a moment of anger. As a consequence of social media and constant connectivity, employers are frequently confronting employees whose formerly private, off-duty conduct is now public and wholly unacceptable inside the workplace. Although Section 7 protects some forms of public expression, employers generally have the right to terminate employees for making radical social media posts, especially if they reflect poorly on the company or create a hostile work environment.

Employers should start by delineating clear policies and boundaries with their employees when it comes to social media. While an employee's conduct is ultimately out of the hands of his employer, the employer can protect herself by not acting rashly and consulting an employment law attorney or human resources expert before taking any action. Finally, employers should keep abreast of changes in the applicable law and communicate those changes to their employees.

Monica Oathout is a partner in the Houston office and labor and employment group of Vorys, Sater, Seymour & Pease. Representing companies in all employment disputes and investigations, Oathout is named in the 2019 Best Lawyers in America for Employment Law–Management. Reed Fryar, a rising third-year law student at the University of Houston Law Center, assisted with the article.