"An employer cannot be liable for what an employee posts online while off-the-clock. Personal time is personal time; it's irrelevant to the workplace." That is an 100% incorrect statement of the law, according to the 9th Circuit Court of Appeals in Okonowsky v. Garland.
Linda Okonowsky worked as a staff psychologist in a federal prison. She discovered that a lieutenant with whom she worked operated an Instagram account followed by more than 100 prison employees, which contained overtly sexist (and racist, anti-Semitic, homophobic, and transphobic) content. It also contained offensive content about the workplace and horrible content that specifically targeted her, including one about the male staff "gang banging" her.
When she complained to the prison's safety manager, he told her that she needed to "toughen up" or "get a sense of humor." It took months of complaints and escalating social-media awfulness before the prison finally took action.
In Okonowsky's sexual harassment lawsuit, the 9th Circuit rejected the district court's order that had dismissed her claim because the Instagram posts happened outside of the physical workplace.
"Social media posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the posts appear. No matter where Hellman was or what he was doing when he made his posts, Lompoc employees who followed the page were free to, and did, view, 'like,' comment, share, screenshot, print, and otherwise engage with or perceive his abusive posts from anywhere. The Instagram page also served as a record of which co-workers subscribed to the page and commented on posts, showed their comments and their 'likes,' and could be seen at any time from any place— including from the workplace.
"[W]e have held that conduct that took place outside of the physical work environment is part of the totality of the circumstances we evaluate when considering a hostile work environment claim.… The relevant standard requires us to assess whether harassing conduct had an unreasonable effect on the working environment and, if so, to consider whether and how the employer responded to that effect. Applying that standard, we have concluded that offsite and third-party conduct can have the effect of altering the working environment in an objectively severe or pervasive manner."
Thus, the court concluded:
"We … reject the notion that only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace."
If you're an employer deciding what you should do about one or more harassing or bullying social media posts made outside of your physical workplace or otherwise off-hours, you should reject that notion, too. If you don't, and act like the prison did in this case, you are helping create a hostile work environment and helping create a Title VII cause of action.