Semester V - National University of Study and Research in Law, Ranchi

LABOUR LAW - I

“POLICING CONDUCT OUTSIDE THE WORKPLACE: BALANCING THE PROTECTION OF

BRAND REPUTATION AGAINST AN EMPLOYEE’S RIGHT TO SPEECH AND EXPRESSION IN
INDIAN EMPLOYMENT CONTRACTS”

(Project towards the fulfilment of Internal Continuous Evaluation for Labour Law- I)

SUBMITTED TO: SUBMITTED BY:

MR. SHANTANU BRAJ CJOUBEY BHANU SUHALKA

ASSISTANT PROFESSOR ROLL NO. – 1228

LABOUR LAW SEMESTER – V ‘A’

End Term Examination – Project Submission

 Semester V - National University of Study and Research in Law, Ranchi

“POLICING CONDUCT OUTSIDE THE WORKPLACE: BALANCING THE PROTECTION OF

BRAND REPUTATION AGAINST AN EMPLOYEE’S RIGHT TO SPEECH AND EXPRESSION IN
INDIAN EMPLOYMENT CONTRACTS”

RESEARCH OBJECTIVES

1. Investigating the impact of employees’ social media usage on brand reputation and explore
instances where the line between an employees’ private and public lives has blurred?

2. Analyze the existing legal framework and corporate policies governing employee conduct
outside the workplace, especially concerning morality clauses, and assess how these measures
balance the protection of brand reputation with employees’ rights to freedom and privacy.

3. Examine international policy measures and legislation in foreign jurisdictions, particularly the
United States, to guide the development of a comprehensive legal framework in India that
addresses the regulation of employee conduct on social media and balances organizational
concerns with individual rights.

“The objective is to address the regulation of employee conduct on social media and
ensure a balance between organizational concerns and individual rights in Indian
context.”

RESEARCH SCOPE

1. The research paper aims to focus on the issues arising due to growing popularity of social media
and its potential to increase the risk of exposure for companies.

2. The paper will delve into the challenges faced by the legal framework effectively safeguarding
both the rights of employees and the business interests of the employers in context of social
media usage.

3. The scope includes examining the blurred line between an employees’ private and public lives
caused by their social media activities and the implications of such blurring on organizational
reputation.

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TABLE OF CONTENTS

PART I: INTRODUCTION ....................................................................................................... 4

PART II: EXPLORING THE CONTOURS OF THE LEGAL CONTROVERSY ................... 5

A. DEFINING THE PROBLEM .............................................................................................. 5

B. THE (INADEQUATE) INDIAN LEGAL FRAMEWORK ........................................................ 6

PART III: INDIAN JUDICIAL PRECEDENTS ........................................................................ 6

PART IV: RESOLVING THE CONFLICT................................................................................ 8

PART V: CONCLUSION ......................................................................................................... 10

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 Semester V - National University of Study and Research in Law, Ranchi

PART I: INTRODUCTION

The ever-increasing popularity of social media brings with it newfound issues, especially
within business organisations, thus increasing risk of exposure. While such use brings with it
effective means for promotion of business, the legal framework, more often than not, has not
kept pace with these developments so as to best safeguard the employee’s rights and the
employer’s business interests. This has significantly blurred the line between an employee’s
private and public lives.

Numerous such incidents have come within the public eye. For instance, a woman by the name
of Amy Cooper drew ire from the public and was subsequently fired from her job after she
called the cops on an innocent African-American male for being told to put her dog on a leash
in New York’s Central Park. Thereafter, in the wake of the Black Lives Matter protests in the
United States of America (US) in May of 2020, Cisco fired some of its employees who made
distasteful comments in opposition to Cisco’s support of the movement.1

In fact, the expression of beliefs deemed to be inappropriate at a setting as informal as a football

match in the United Kingdom (UK) has led to suspension of the concerned personnel. 2 Such
Generally, employer justify their decision on the basis of a ‘zero-tolerance policy’ towards the
kind of behaviour displayed.3 These cases are by no means restricted to jurisdictions outside
India. In fact, India has had its fair share of such incidents.4

This recent spate of cases gives rise to important questions about the regulation of employee
conduct outside the workplace. There is an urgent need for governmental policy on how an
employer is to evaluate ‘morality’ and balance it against the freedom of speech and privacy of
an employee for acts outside of the workplace, since it is crucial in determining the scope of
an employee's rights. Through this paper, the authors seek to bring the core issue to the fore,

1
Katie Canales, A ‘handful’ of Cisco employees were fired after posting offensive comments objecting to the
company’s support of the Black Lives Matter Movement, BUSINESS INSIDER (JULY 17, 2020),
https://www.businessinsider.in/tech/news/a-handful-of-cisco-employees-were-fired-after-posting-offensive-
comments-objecting-to-the-companys-support-of-the-black-lives-matter-movement/articleshow/77025704.cms.
2
Amy Walker, Football faces calls for action on racism in wake of Manchester derby, GUARDIAN (DEC. 8, 2019),
https://www.theguardian.com/uk-news/2019/dec/08/alleged-racist-abuse-manchester-united-city-fred-derby.
3
Id; Peter Strozniak, TDECU Fires Employee for Posting Racist Remarks on Social Media, CREDIT UNION TIMES,
(AUG. 25, 2020), https://www.cutimes.com/2020/08/25/tdecu-fires-employee-for-posting-racist-remarks-on-
social-media/?slreturn=20200907112509.
4
Infosys employee says spread the coronavirus in Facebook post. Gets fired, INDIA TODAY (MAR. 28, 2020),
HTTPS://WWW.INDIATODAY.IN/TRENDING-NEWS/STORY/INFOSYS-EMPLOYEE-SAYS-SPREAD-THE-CORONAVIRUS-IN-
FACEBOOK-POST-GETS-FIRED-1660634-2020-03-28.

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draw inspiration from policy measures in foreign jurisdictions so as to guide India’s legal
framework, and delve into possible solutions for the same.

PART II: EXPLORING THE CONTOURS OF THE LEGAL CONTROVERSY

A. DEFINING THE PROBLEM

Scholars such as Patricia Sánchez Abril and Nicholas Greene posit that “[m]orality clauses give
a contracting party the right to terminate if the other party behaves badly or embarrassingly,”5
and that despite frequent occurrence, the balance of scales has largely been in favour of wealthy
corporates. As a result, morality clauses (and the problems that come with it) have never been
subject to keen scrutiny.6 What is also particularly interesting about their incisive analysis of
the problem, is their two-fold understanding of such clauses in employment contracts – those
of “bad behaviour” and “reputational impact”. While the former kind covers acts such as
commission of a crime, arrest, and failure of a drug test, the latter kind covers a far broader and
more ambiguous range, including general indecency and the use of offensive language that
reflect poorly on all parties involved. Such acts are usually followed by some kind of uproar or
outcry, as was seen earlier with respect to the Black Lives Matter movement.

Irrespective of the form, the essential rationale behind morality clauses is fairly
straightforward: organisations fear the negative consequences of their employees’ conduct and
seek to distance themselves from the same, fearing reputational hazards. The basic assumption
behind such a move is that an organisation’s employees represent their employer in the public
eye.7 Thus, it is often assumed that their conduct is attributable to the organisation and its goods
and / or services.

There are numerous illustrations demonstrating the application of such policies in jurisdictions
such as the UK and the US. In a recent case in the US, a woman was fired from her firm after
she was photographed making untoward gestures at US President Donald Trump, despite the
fact that her face was not visible and there was nothing tying her back to her employer.8 In fact,

5
Patricia Sánchez Abril & Nicholas Greene, Contracting Correctness: A Rubric for Analyzing Morality Clauses,
74(1) WASH. & LEE L. REV. 3 (2017).
6
Id.
7
Fernando Pinguelo & Timothy Cedrone, Morals? Who Cares About Morals? An Examination of Morals Clauses
in Talent Contracts and What Talent Needs to Know, 19 SETON HALL J. SPORTS & ENT. L. 347, 352 (2009).
8
Petula Dvorak, Flipping off President Trump has changed Juli Briskman’s life — and exposed our divisions,
Wash. Post (Nov. 14, 2017), https://www.washingtonpost.com/local/flipping-off-president-trump-has-changed-

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as far back as 2004, an officer was dismissed from employment due to his involvement with a
business venture deemed ‘vulgar’ or ‘inappropriate’.9 Thereafter, in 2011, a UK Court ruled in
Apple Inc.’s favour after they fired an employee who posted a critical review of the latest
iPhone model on his social media account.10

B. THE (INADEQUATE) INDIAN LEGAL FRAMEWORK

India as of now does not have any specific legislation governing the use of social media.
Constitution of India does not recognise a right to privacy, however right to life has been
interpreted to include right to privacy. The Constitution also offers right to freedom of speech
and expression. However, the Constitutional rights are enforceable only against a State under
Article 12 of the Indian Constitution. However, non-state-initiated violations of privacy may
also be dealt with under the principles of torts such as ‘defamation’ and ‘breach of confidence’.
The relevant legal framework governing the matter of data protection of employees is thus,
Information Technology Act, 2000, (IT Act) read with Reasonable Practices and Procedures
and Sensitive Personal Data or Information Rules, 2011 (Data Protection Rules), the Indian
Contract Act, 1872 (ICA), and tort law. IT Act deals only with ‘sensitive personal data or
information’, and thus is not applicable to data available openly on social media.

Thus generally, the relation between employer and employee is governed by ICA. The contracts
may have clause like ‘confidentiality clause’, where an employer agrees to maintain the
confidentiality of certain information relating to the company or transactions. Morality clauses
as discussed above may also be added in the contract.

PART III: INDIAN JUDICIAL PRECEDENTS

India does not have any particular framework to deal with social media India has not had much
litigation related to conflict between right to privacy and employer’s actions based on
employee’s posts or views expressed on social media. However, certain cases may give us an
insight into the scenario in India. The Supreme Court in the case of K.S. Puttaswamy v. Union
of India,11 while observing that a person should have “right to control his existence on the

juli-briskmans-life--and-exposed-our-divisions/2017/11/07/19efab02-c3f6-11e7-afe9-
4f60b5a6c4a0_story.html?utm_term=.0ec4f504f4cc.
9
Pay v. Lancashire Probation Service, [2003] UKEAT 1224_02_2910.
10
Crisp v. Apple Retail UK Limited [2011] ET/1500258/11.
11
AIR 2017 SC 4161.

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 Semester V - National University of Study and Research in Law, Ranchi

internet”, noted that there have been instances where a high school teacher was fired for posting
in the internet that “the school district’s residents were arrogant and snobby”.12 Similarly, a
flight attendant was fired when she posted suggestive pictures of herself in company’s
uniform.13 The Court observed that “right to be forgotten” has been recognised in Europe and
minor acts done, or views expressed on social media should not have a permanent effect on
individuals.

In Anil Kumar AP v. Mahatma Gandhi University,14 where an employee put up a Facebook

post without naming the university or any person, Kerala High Court held that “[e]motional
outburst of an employee through social media is part of his right to free speech.” The Court
held that if an employee puts up a post from a general perspective, not directly affecting the
institution, the employed has no right to interfere with it and that is protected by employee’s
right to freedom of speech.

In context of government services, in S. Thiru Arasu v. NLC India Ltd.,15 the employee had
put Facebook posts against NLCIL’s policies and its decision to outsource some work to private
contractor. The issue was whether his actions amounted to “misconduct” under NCIL Standing
Orders. The Court held right to freedom of speech16 can be restricted to maintain efficiency
and discipline, and that would be covered by exception of public order under Article 19(4).
Observing that as rights and duties are two sides of the same coin, the Court refused to interfere
with the enquiry against the employee. In Jayant v. State of Maharashtra,17 however, the post
by the employee was political but unrelated to the function performed by him. The Court noted
that threat of disciplinary action against employee in his private conduct, unrelated to his duty
“would be a haunting ghost”.18 The Court observed that such a scenario would hinder a person’s
pursuit of happiness and development of his personality. Further, it can incentivise others to
keep an eye on employee’s personal life, for any instance which may be used against him. Such
actions offend the right to freedom of speech under article 19 of the Constitution. The Court
thus held that the post uploaded by the employee is general in nature and not directed against
any individual or group, and thus cannot be a ground for enquiry.

12
Id.
13
Id.
14
ILR 2018 (4) Kerala 684.
15
2018 (6) SLR 84.
16
CONSTITUTION OF INDIA §19.
17
2018 (2) SLJ 178 (Bombay).
18
Id; M.V.S. Prasad Rao v. State of A.P., 1985 (2) APLJ (HC) 326.

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 Semester V - National University of Study and Research in Law, Ranchi

PART IV: RESOLVING THE CONFLICT

As stated, India does not have any legislation to deal with social media use by employee, and
thus such matters are governed by Indian Contract Act, 1872. This gives employers a wide
leeway to draft broad terms, leaving it to the subjectivity of the employer to terminate the
employee. Under such clauses, members of crew in an airline were suspended and arrested on
account of posting derogatory remarks on social media against the Prime Minister’s office, the
national flag, the Supreme Court and leaders of the opposite employee association.19 Similarly,
government employees were suspended when they posted comments on Facebook against a
chief minister.20 An employee was suspended by government because of sharing news
criticising the government on a scam.21 Two government employees were suspended when they
posted posts against the state government.22 These instances clearly show how the right to
freedom of speech and privacy of the employees to share their views unrelated and outside
their work is not balanced in India. Even though the Court in Jayant,23 held that political
comment unrelated to their jobs cannot amount to “misconduct” and used to terminate the
employee, such instances occur often. While the instances quoted here are related to political
posts, they may be applied to various types of posts, perceived homophobic or racist posts,
views not generally acceptable to the society etc.

It may be noted that drawing a clear demarcation between the private use of social media and
use in connection with business is difficult.24 Employers have often been held responsible for
the actions of their employees, even if the posts are personal views made from a personal
account. By way of example, a Flipkart employee ordered a product from Home Shop,
subsequently cancelled the order once the product was shipped, and then resorted to making

19
Two AI staffers held for FB posts demand action against cops, HINDUSTAN TIMES (NOV 27, 2012),
http://www.socialsamosa.com/2012/11/two-air-india-employees-arrested-for-derogatory-face-book-posts/.
20
Saritha S Balan, Mixed reaction to suspension of government staff for Facebooking, NEW INDIAN EXPRESS (JULY
5, 2013), https://www.newindianexpress.com/states/kerala/2013/jul/05/Mixed-reaction-to-suspension-of-
government-staff-for-Facebooking-493724.html.
21
Officials suspended for Facebook comments, NDTV https://www.ndtv.com/patna-news/two-officials-
suspended-for-facebook-comments-468468.
22
Government officials suspended for sharing Facebook post, TIMES OF INDIA (JUNE 16, 2019),
https://timesofindia.indiatimes.com/city/thiruvananthapuram/government-official-suspended-for-sharing-
facebook-post/articleshow/69810289.cms.
23
Jayant v. State of Maharashtra, 2018 (2) SLJ 178 (Bombay).
24
Preetha S. & Vikram Shroff, India, in SOCIAL MEDIA AND EMPLOYMENT LAW: AN INTERNATIONAL SURVEY
(Anders Etgen Reitz et al. eds., 2015).

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abusive statements on Twitter. The matter generated uproar in the community and Flipkart had
to eventually apologise for the actions of its employee.25

To tackle this problem, we may take a look at states in the United States. Certain states have
codified laws prohibiting the employers to regulate off-duty conduct of the employees.26 New
York, for instance, prohibits employers to discipline employees for engaging in lawful
recreational activities, legal use of consumable products, or lawful political activities, when
outside of working hours; off the employer’s premises; and without use of employer-owned
equipment.27 This is a broad provision and employers have little chance to prohibit off-duty
conduct. Colorado off-duty statute prohibits employer from terminating employee based on
off-duty conduct. It however, provides three exceptions — “(1) the employee violates a "bona
fide" occupational qualification; (2) the employee violates a restriction reasonably and
rationally related to the employment activities and responsibilities of a particular employer or
particular group of employees; or (3) to avoid the appearance of a conflict of interest with any
responsibilities of the employer”.28

While it is true that employees owe a duty of loyalty to the employer. Employees also owe a
duty to protect and maintain confidentiality.29 Further, employers do have pressure to maintain
their image in case employees do something unfavourable, even in their private capacity.
However, protection of employees’ right to freedom of speech and right to privacy is an equally
(if not more) valid concern. These matters cannot be governed by contracts law alone, as the
employers have a much greater bargaining power and present to the employees’ standard terms
which are so broad in nature, that the decision of termination/suspension ultimately rests on
the subjective analysis and perception of the employer. It is precisely because of this that India
should have legislation in this regard. The authors suggest that a legislation similar to
Colarado’s (as mentioned above) may be adopted. Such legislation protects the valid concern
of the employer regarding the protection of confidential material of employer, activities done
from employer’s premises, and restriction related to employment activities and responsibilities.
The legislation should be aimed at limiting employers’ concern to the activities reasonably

25
Of Flipkart vs. Homeshop18 Tweet Controversy and A Question: Do brands own their employee’s tweet? NEXT
BIG WHAT, https://nextbigwhat.com/homeshop18-vs-flipkart-tweet-controversy/.
26
Brian M. Flock, Some State Laws Prying Into Employee’s Online Activities, ABA NAT’L SYMP. ON TECH. LAB.
& EMP. L. (2010).
27
N.Y. LAB. LAW § 201(d)(2)(a), (3)(a) (Consol. 2003); Susan C. Hudson & Karla K. Roberts, Drafting and
Implementing an Effective Social Media Policy, 18 TEX. WESLEYAN L. REV. 767, 779 (2012).
28
COLO. REV. STAT. § 24-34-402.5(1)(a)-(b) (2011); Hudson & Roberts, supra note 27.
29
Hudson & Roberts, supra note 27.

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related to employment. Views outside that should not be the concern of employer, to avoid this
“haunting ghost”.30

Further, in addition to robust governmental policy on such morality clauses, the use of social
media and conduct outside the workplace, it is also important for corporations and employers
to develop a framework within which incidents are to be examined. It has long been argued
that the imposition of sanctions for varied beliefs is a slippery slope, and paves the way for
employers to bring action against its employees on a subjective determination of facts. Many
scholars warn against this form of ‘thought control’,31 arguing that “a democracy cannot
eliminate obnoxious views by permitting the imposition of economic hardship through
dismissal”.32 They argue that it is through training, sensitisation workshops, discussion, and
dialogue that change will come about, as opposed to merely removing the ‘wrongdoers’ from
employment. While such views have received mixed responses, it is clear that employers need
to strike a balance between ensuring a non-hostile work environment, and firing employees on
a subjective determination of facts.

PART V: CONCLUSION

The paper explores the impact of social media usage on employee conduct and the legal
controversies surrounding it. It highlights the lack of a comprehensive legal framework in India
to address employee conduct outside the workplace on social media platforms. The paper raises
questions about the balance between an employee's freedom of speech and privacy and an
employer's concerns about reputational hazards. The research objectives are to bring attention
to the core issue, draw inspiration from policy measures in foreign jurisdictions, and explore
possible solutions for regulating employee conduct on social media while safeguarding
individual rights and organizational concerns.

The paper discusses the concept of morality clauses in employment contracts and their
application in different jurisdictions, such as the UK and the US. It points out that the Indian

30
Jayant v. State of Maharashtra, 2018 (2) SLJ 178 (Bombay).
31
Amir Paz-Fuchs, Principles into Practice: Protecting Offensive Beliefs in the Workplace, UK LABOUR L.
BLOG (FEB. 12, 2020), https://wordpress.com/view/uklabourlawblog.com.
32
Hugh Collins & Virginia Mantouvalou, Redfearn v UK: Political Association and Dismissal, 76(5) MODERN L.
REV. 909 (2013).

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legal framework does not specifically address social media use by employees, leaving
employers with broad terms to terminate employees based on subjective analysis.

The paper presents some Indian judicial precedents that touch upon conflicts between
employees' right to privacy and freedom of speech and an employer's actions based on social
media posts. It suggests that India should adopt legislation similar to off-duty conduct laws in
some US states to protect employees' rights while addressing valid employer concerns related
to employment activities.

In addition to a robust governmental policy and legislation, the paper advocates for
corporations and employers to develop a framework for examining incidents, moving away
from thought control and focusing on training, sensitization workshops, discussions, and
dialogues to foster a non-hostile work environment.

In conclusion, the paper emphasizes the need for clear regulations and guidelines to govern
employee conduct on social media outside the workplace, striking a balance between individual
rights and organizational interests. It highlights the importance of addressing this issue through
legislation and creating a framework for examination, promoting a healthier work environment.

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