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.
