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Off Duty Conduct – Ask the Expert

Can You Terminate an Employee for Posting Anti-Semitic Remarks on Facebook?

Off-duty conduct is grounds for discipline when it directly impacts the workplace.
QUESTION
We just discovered that one of our employees is a member of the Neo-Nazi party and has made a series of disparaging comments about Jewish people on his Facebook page. Can we fire him?
ANSWER
It depends.
EXPLANATION
I can certainly understand why you wouldn’t want to have a person like that in your organization. But how employees live their lives away from work isn’t legitimate grounds for discipline UNLESS there’s a “nexus” between their conduct and the workplace. As the employer, you’d have the burden of proving such a nexus in any grievance or legal proceeding for wrongful dismissal.

However, thanks to decade of case law, we have a pretty good idea of where courts draw the lines. Specifically, there are 5 basic factors establishing a nexus between off-duty conduct and the workplace. What you need to do at t...

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