Social Media Alerts You to an Employee’s Alarming Off-Duty Conduct. What Now?

By Erika Paulus posted 02-19-2025 08:01 AM

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What should an employer do if an employee is the subject of a viral social media video showing them doing something that violates the employer’s mission and values? A recent incident during a pro football game that gained widespread media attention is a reminder of how an employer can suddenly find itself in that position.

At a January game, a male Philadelphia Eagles fan was captured on video yelling sexist slurs at a female Green Bay Packers fan. The video was posted on social media and widely viewed. The man’s employer — a consulting firm focused on diversity and equity — was made aware of the video and terminated his employment, according to multiple news reports.

It’s important to remember that there are various factors that affect what actions an employer can or should take. To that end, before an employer disciplines an employee for something that occurs outside the workplace and is brought to its attention through social media, it should consider the following:

Union: If an employer has a union, is the employee part of the union? If so, you want to make sure discipline, including termination, is done in accordance with the collective bargaining agreement.

Type of employer: Government employees have First Amendment rights and more rights related to speech outside of work than private sector employees. Government employers should consult with legal counsel before disciplining. Private sector employers can generally discipline for conduct outside of work as long as there is not a state off-duty conduct law or other law that provides otherwise.

Employment contract: If the employee is subject to an employment contract, make sure any discipline is in accordance with the contract.

Off-duty conduct law: Many states, including Colorado, have off-duty conduct laws. Employers need to check the state law where the employee works to make sure there is not an off-duty conduct law that prohibits discipline.

Consistency: An employer should make sure they are treating the employee the same as how they have treated other employees for similar violations. Treating employees consistently minimizes the risk of discrimination claims.

Legitimacy: For social media posts, make sure the content is legitimate and not AI-created. An employer can interview the employee who is in the video or mentioned in the post. An employer can also interview others who are involved.