In Which States Is an Employee Protected from Firing for Making and Posting Porn Videos Off-Duty?

Colorado, North Dakota, probably Montana, and maybe New York.

As I noted in yesterday's UW Chancellor post, the First Amendment generally doesn't prevent government employers from firing employees for making porn videos off-duty: Porn is generally viewed as speech that's not on "matters of public concern" for purposes of First Amendment employment law. (Much porn is protected against criminal prosecution or civil liability, but not against government employer retaliation.)

Likewise, the state statutes and local ordinances that protect speech by employees, including private employees, generally limit themselves to "political activity." Whether that's defined broadly or narrowly, it's unlikely to cover making of garden-variety porn. A New Hampshire law protects speech by government employees, but is limited to the "right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies."

But four states, by my count, might protect employees who make porn off-duty from employer retaliation. Colorado law provides,

[No employer may] terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction:

(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or

(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

North Dakota similar provides,

[No employer may discriminate against an employee or applicant] because of … participation in a lawful activity that is off the employer's premises and that takes place during nonworking hours [unless that participation is]

[a] in direct conflict with the essential business-related interests of the employer … [or]

[b] contrary to a bona fide occupational qualification that reasonably and rationally relates to employment activities and the responsibilities of a particular employee or group of employees, rather than to all employees of that employer.

Naturally, one can debate when the exceptions apply, and that might turn on the employee's particular job. (For instance, high-level employees that are supposed to be institutional leaders and role models might be subjected to greater restrictions than rank-and-file employees.) But if the making of the porn is "lawful"—i.e., doesn't include child participants and thus isn't "child pornography," and isn't so hard-core as to be punishable "obscenity"—the statutes would at least presumptively apply.

New York law similarly provides,

(1) … (b) "Recreational activities" shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material ….

(2) … (c) [No employer may discriminate against an employee or prospective employee] because of … an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property …

(3)(a) [This section shall not be deemed to protect activity that] creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest ….

(4) [A]n employer shall not be in violation of this section where the employer takes action based on the belief … that: … (iii) the individual's actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.

The law would thus likely forbid firing for viewing pornography (unless one of the exceptions applies), but it's not clear whether noncommercial creation and posting of pornography counts as behavior that "is generally engaged in for recreational purposes."

Montana is the one state that generally bars employers from firing people without good cause:

[An employer may not discharge an employee] if … the discharge was not for [reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reasons] and the employee had completed the employer's probationary period of employment [or six months, if the employer did not establish a specific probationary period] ….

Again, one would have to consider the facts of the particular incident and job category, but at least some employees are likely to be protected by this. (Of course, in all states employees can also be protected by contracts that allowing firing only for cause—such as labor contracts, tenure contracts, and other such contracts—though that of course depends on the particular terms of the contract. And in some jurisdictions employees may also be protected by civil service protections that require "good cause" to fire.)

Finally, note that, if a state law does bar firing employees for certain kinds of activity, employment contracts can't trump those statutory rights—just as an employer can't insist that employees waive their rights not to be discriminated against based on race, not to be harassed based on sex, or not to be fired for their legally protected religious activities. But a contract might be relevant to the interpretation of a statute, for instance, if it sets forth specific obligations for a particular class of employees that's related to their employment responsibilities.