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Does NC Law Prohibit Employers From Acting on Drunk Facebook Behavior?

    Client Alerts
  • August 10, 2015
In recent years, numerous employers have fired or taken other disciplinary action against employees based on antics posted on social media sites. The classic example of such reaction involves parents who discover that their children’s teacher has engaged in wild partying during the weekend or during break, and has posted pictures of the event to her Facebook page. In other circumstances, churches or other religious-affiliated employers object to employees’ off-duty conduct involving smoking or alcohol use.

While the first reaction to these discoveries may be to fire the offending employee, employers in North Carolina need to consider whether such decision run afoul of the state’s lawful products use law. N.C.G.S. § 95-28.2 prohibits employers from taking adverse action against employees based on their lawful use of legal products outside of work. The law was enacted in 1992 at the behest of the tobacco industry specifically to protect smokers against the growing number of employers refusing to hire tobacco users.

Over the years, this law has had some interesting unintended consequences. An employer that terminates an employee who posts a picture of herself holding a drink at a bar may very well face a lawsuit for damages and reinstatement. The statute contains an exception for employers that restrict non-working hours use of lawful products if the restriction “relates to the fundamental objectives of the organization.” Although there are no reported cases interpreting this provision, presumably it would apply to a church that bans employees from using alcohol or tobacco products based on religious tenets.

Would this exception apply to the non-religious school scenario described above? Could the school claim that a teacher posting a picture of her drinking in a bar violates the fundamental objectives involved in teaching children? The school could argue that its response is based on evidence of drunken behavior, not the mere consumption of alcohol, but how does it prove that the teacher was actually drunk at the time the pictures were taken?

Concerned employers would be well advised to caution employees in sensitive positions about the possible impact of their social media use on the effective performance of their jobs. However, any disciplinary action taken as a result of such behavior should be carefully investigated and confirmed before being implemented. If North Carolina ever legalizes marijuana, the General Assembly may need to carefully consider the impact of the lawful products statute on that decision.