When you encounter a co-worker who's a massive pain and you're away from work, you may want to plant a few well-deserved barbs in her hide. Harassment at work is prohibited by federal and, in many cases, state law. Harassment outside of work, though, isn't directly prohibited. One question that faces everyone is whether whether confronting someone outside of work is considered harassment or simply a matter of protected speech.
Employer's "General Duty"
If you harass one of your co-workers in the office, you might be out of a job before the end of the next workday. The Occupational Safety and Health Administration (OSHA), the government agency charged with enforcing workplace safety and health laws, considers harassment, bullying, or other forms of intimidation as workplace violence. The Occupational Safety and Health Act of 1970 says your employer has a mandatory general duty to provide a safe workplace -- one that doesn't include intimidation or threatening behavior. This means harassment at work is a no-no at work; however, harassment elsewhere isn't explicitly addressed.
No Whistleblower Protection
Your co-worker, the victim, can speak with the OSHA inspectors in private about the reason she feels the workplace is now a hostile environment. If the OSHA inspectors speak to the business owner or managers about the matter, they will tell company representatives that the harassment occurred away from work and the OSHA regulations about workplace violence address harassment in the workplace only.
Whether you can be fired or not rests with your employer. If you work under a union contract that covers harassment away from the workplace, the union contract controls your continued employment. If you work in one of the 23 so-called right-to-work states, your employer may discharge you at any time for almost any reason, unless you work under a union contract. Even if you have the protection of a contract, your employer may find another reason to dismiss you.
Can of Worms
Should your employer choose to terminate your employment for harassment away from work, you may be able to fight that termination based on your First Amendment right of free speech, but you may lose even if your comments are true. The laws regarding protected speech are constantly evolving. If your employer chooses to discharge you for another reason, such as poor work performance, your harassment of another employee might precipitate your firing, but the true reason won't appear on your work record.
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