MAYBE BEHAVE BETTER ALL THE TIME?

"Private employers have pretty broad latitude to terminate you for out-of-work conduct -- it's usually perfectly legal," said Virginia attorney Tom Spiggle. Spiggle appears from time to time as a guest to discuss employment law matters on the Law&Crime Network.

"These issues, understandably, are confusing to people," Spiggle said, given that most people would likely assume conduct which happens outside of work would not result in their termination. However, for at-will employees, it can, and rather easily. Spiggle added that viral cases which showcase employee conduct such as that portrayed in the Cooper video present a "tough spot" for employers; "most don't want to be caught up in" or suffer any residual ill will which may come from the employee's continued presence.

The analysis changes slightly when employees work for the government. There, generally, employees can be fired for out-of-work conduct, Spiggle said. However, public employers must abide by the First Amendment and the Due Process Clause. Government employees "can't say whatever they want, but there are some protections," he explained, noting possible -- but certainly neither simple nor easy -- First Amendment and § 1983 claims for alleged depravations of civil rights.

An employee who is is covered by an employment contract may enjoy greater protection based on the language of his or her individual contract. Many contracts, Spiggle warns, simply allow termination "for cause," and the courts of some states, such as Virginia, interpret that language very broadly in favor of the employer.  "It's [oftentimes] whatever the employer says it is," Spiggle explained, as to what "for cause" termination could entail. Yet other contracts are more precise.

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