Let’s talk about some­thing that’s become more and more rel­e­vant in today’s world—off-duty con­duct. What hap­pens when an employ­ee gets into trou­ble out­side of work? Can an employ­er fire some­one for some­thing they did on their own time? And how do courts draw the line between pri­vate behav­ior and job-relat­ed consequences?

The short answer: yes, employ­ers often can ter­mi­nate some­one for off-duty con­duct, but it depends heav­i­ly on the circumstances—and there are key legal pro­tec­tions that lim­it this right.

This area of law lives in a gray zone where employ­ment at-will, pub­lic pol­i­cy, dis­crim­i­na­tion statutes, and even social media all over­lap. Let’s dive in.

At-Will Employment and the Right to Terminate

As you know, West Vir­ginia is an at-will employ­ment state, like most of the coun­try. That means employ­ers can gen­er­al­ly ter­mi­nate an employ­ee for any reason—or no rea­son at all—so long as it’s not ille­gal or in vio­la­tion of a pub­lic pol­i­cy. See W. Va. Code § 21–5‑4 and Felix v. Grafton City Hos­pi­tal, 447 S.E.2d 418 (W. Va. 1994).

So, in the­o­ry, an employ­er could fire an employ­ee because of some­thing they did off the clock—say, a bar fight, a con­tro­ver­sial Face­book post, or a DUI arrest.

But the­o­ry and prac­tice aren’t always the same.

Off-Duty Conduct and Public Policy Protections

West Vir­ginia rec­og­nizes the pub­lic pol­i­cy excep­tion to at-will employ­ment, laid out in Har­less v. First Nat’l Bank, 246 S.E.2d 270 (W. Va. 1978). That case opened the door for wrong­ful dis­charge claims when a ter­mi­na­tion vio­lates a clear man­date of pub­lic policy.

So while an employ­er may fire some­one for a DUI, they prob­a­bly can’t fire some­one just for exer­cis­ing a pro­tect­ed right—like vot­ing, serv­ing on a jury, or report­ing a safe­ty violation.

Oth­er pub­lic pol­i­cy exam­ples include:

• Ter­mi­na­tion for fil­ing a work­ers’ comp claim.
• Retal­i­a­tion for whistleblowing.
• Fir­ing some­one for law­ful off-duty activ­i­ty, like con­sum­ing alco­hol (unless it direct­ly impacts job performance).

These pro­tec­tions vary by state, but even in West Vir­ginia, employ­ers should tread care­ful­ly when fir­ing some­one for off-the-clock conduct.

Social Media: The New Frontier

One of the most com­mon sources of off-duty issues these days? Social media.

Sup­pose an employ­ee posts some­thing con­tro­ver­sial or offen­sive on Face­book or X (for­mer­ly Twit­ter). Can they be fired?

Again, it depends.

• If the post is racist, sex­ist, or oth­er­wise vio­lates the employer’s anti-harass­ment pol­i­cy, the answer is prob­a­bly yes.
• If the post crit­i­cizes work­ing con­di­tions or wages, it may be pro­tect­ed under the Nation­al Labor Rela­tions Act (NLRA). That’s espe­cial­ly true if the post is part of “con­cert­ed activ­i­ty” under 29 U.S.C. § 157. See NLRB v. Pier Six­ty, LLC, 855 F.3d 115 (2d Cir. 2017).

Employ­ers should be cau­tious not to pun­ish employ­ees for express­ing pro­tect­ed views or for engag­ing in legal off-duty behavior.

Employ­ees, on the oth­er hand, should remem­ber that “free speech” pro­tec­tions under the First Amend­ment do not apply to pri­vate-sec­tor jobs. Only gov­ern­ment employ­ers are bound by the First Amend­ment in this context.

Criminal Conduct and Arrests

What about when an employ­ee is arrest­ed or con­vict­ed of a crime?

In many cas­es, employ­ers are with­in their rights to ter­mi­nate employ­ment after an arrest or con­vic­tion, par­tic­u­lar­ly if the offense relates to the job. For example:

• A school bus dri­ver arrest­ed for DUI.
• A bank employ­ee con­vict­ed of theft.
• A care­giv­er arrest­ed for assault.

That said, some states restrict the use of arrest records in employ­ment deci­sions. West Vir­ginia does not have a broad statute on this, but employ­ers should still be care­ful not to pre­sume guilt before a conviction.

Addi­tion­al­ly, under the fed­er­al Fair Cred­it Report­ing Act (FCRA), employ­ers must fol­low notice pro­ce­dures if they’re using a back­ground check to make a ter­mi­na­tion deci­sion. See 15 U.S.C. § 1681b(b)(3).

Employee Off-Duty Conduct Laws in Other States

While West Vir­ginia does­n’t have a broad “off-duty con­duct” statute, sev­er­al states do. For example:

• New York pro­tects employ­ees from adverse action for law­ful off-duty con­duct like polit­i­cal activ­i­ties or tobac­co use (N.Y. Lab. Law § 201‑d).
• Cal­i­for­nia pro­tects employ­ees’ law­ful off-duty con­duct unless it direct­ly con­flicts with job duties (Cal. Lab. Code § 96(k)).

These laws reflect a grow­ing nation­al trend to give employ­ees more pri­va­cy in their per­son­al lives. West Vir­ginia hasn’t joined that wave yet, but that doesn’t mean employ­ers can be reckless.

Best Practices for Employers

For employ­ers look­ing to avoid legal headaches:

• Have a clear, writ­ten pol­i­cy about off-duty con­duct and social media use.
• Enforce poli­cies con­sis­tent­ly. Selec­tive dis­ci­pline can open the door to dis­crim­i­na­tion claims.
• Doc­u­ment the con­nec­tion between the off-duty con­duct and the busi­ness interest—reputation, safe­ty, team cohe­sion, etc.
• Con­sid­er alter­na­tives to ter­mi­na­tion, such as sus­pen­sion or pro­gres­sive dis­ci­pline, espe­cial­ly if the con­duct is unre­lat­ed to job performance.

And of course, when in doubt, con­sult employ­ment coun­sel before pulling the trig­ger on a ter­mi­na­tion based on per­son­al conduct.

Tips for Employees

Employ­ees should:

• Under­stand that “off the clock” doesn’t mean “off the hook.”
• Be cau­tious about what they post online—even on per­son­al accounts.
• Know their rights under fed­er­al and state law, espe­cial­ly when it comes to pro­tect­ed activ­i­ty or wrong­ful ter­mi­na­tion claims.
• Doc­u­ment every­thing if they believe they were ter­mi­nat­ed unfair­ly, espe­cial­ly if it relates to dis­crim­i­na­tion, retal­i­a­tion, or whistleblowing.

Final Thoughts

Off-duty con­duct can absolute­ly impact employ­ment, but the law is more nuanced than many real­ize. Employ­ers have a right to pro­tect their inter­ests, but employ­ees also have legal protections—particularly when the con­duct is law­ful and unre­lat­ed to the job.

It’s a del­i­cate bal­ance, and as per­son­al lives and pro­fes­sion­al lives con­tin­ue to blend (thanks, smart­phones), this area of law will only get more interesting.

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Drew M. Capuder

Attorney at Capuder Fantasia PLLC

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 30 years of experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261.

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