What would you do if you discovered through social media that one of your employees was moonlighting as an actor in pornographic movies?
That question was recently posed in SHRM Connect, the Society for Human Resource Management's (SHRM) online discussion group for SHRM members. The anonymous writer, whom SHRM was unable to reach for comment on this article, sought advice on what to do about an administrative assistant who was working a second job making porn.
The company was unaware of her work in the porn industry when it hired her, the person wrote, and her day-to-day work performance is satisfactory. In addition, "We are not aware of her violating any workplace rules relating to technology systems, etc.," the person wrote. "The biggest concern we have is the image this now portrays."
The employee had tweeted about both her administrative job and her porn job from her personal Twitter account. The writer noted that the employee was not in violation of the company's social media policy. However, the writer questioned if other HR professionals would terminate the employee and on what grounds. And if not, what steps would they take in this situation? Most people commenting on the post suggested taking no action. But what do experts say?
To Fire or Not to Fire?
"I would not terminate this person," especially if there are no concerns about her day-to-day performance, said Janine N. Truitt, chief innovations officer of Talent Think Innovations LLC, a management consultancy based in Port Jefferson Station, N.Y.
"While her second job is not one that most companies would prefer for her to have, she is entitled to moonlight or do what she likes off the clock," Truitt told SHRM Online in an interview.
"As frowned upon as it might be to have a porn star as an employee, pornography is legal."
However, "if the company had a code of conduct or conflict-of-interest policy preventing employees from taking other jobs, that would make the difference here," she added.
"Additionally, as frowned upon as it might be to have a porn star as an employee, pornography is legal. It would be completely different if … the second job was prostitution [which is illegal] except in some parts of Nevada. Then and only then would I feel comfortable terminating the employee."
The decision to fire or retain also depends on the nature of the business.
Truitt and other HR professionals suggested that HR have a conversation with the employee—but not before consulting an attorney. Asking the employee to limit what she says on social media about her work at either job could be against the law.
"It may seem like a slam-dunk that you could simply terminate, but there is plenty of gray area," Truitt added. "I would explain to her that while we have nothing on the books preventing her from having the job, we would prefer she not discuss or share anything having to do with her second job during work hours. While I would want her to not mention the company on social media knowing what she does after hours, I believe asking her not to discuss work or work conditions would be in violation of the National Labor Relations Board rule around social media."
[SHRM members-only resource: Managing and Leveraging Workplace Use of Social Media]
Workplace Law Considerations
Eric Meyer, chair of the Social Media Practice Group for Dilworth Paxson LLP in Philadelphia, told SHRM Online that while he could not offer specific legal advice because he doesn't represent the company, there are four issues to be considered:
The company's social media policy. "Does the social media policy do enough but not too much? That is, a social media policy with rules, and ramifications for violating those rules, is your bedrock for addressing—and potentially disciplining—an employee for issues that arise under that policy," Meyer said. "However, the National Labor Relations Board has consistently struck [down] overly broad social media policies that limit certain discussions about terms and conditions of employment, [such as] salary [or] gripes about work. So it's key to strike the right balance."
Protected concerted activity. "Has the employee engaged in 'protected concerted activity'?
In plain English, employees can discuss work with one another. The National Labor Relations Act guarantees that right. Indeed, one employee can engage in concerted activities when it's to galvanize co-workers. So if an employee tweets a call to action, that could be protected. If an employee retweets or replies to a co-worker's tweet, that could be protected, too."
Other pertinent policies. "Is there another policy [that applies]? For employees who work a second job, maybe that's addressed in a moonlighting policy. Whatever policy may apply, try to follow it consistently and to the letter," Meyer added.
The need to avoid gender stereotypes. "For any situation like this one, ask yourself, 'Would we react the same way if John did what Jane did?' That answer must be 100 percent absolutely, without hesitation, 'yes.' Otherwise, you risk a gender-bias claim."
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