Aug 28 2024
Amanda DeMatteis: Hi, Josh.
Josh Goodbaum: Hi, Amanda. What are we talking about today?
DeMatteis: I had an interesting consultation this week, and I’m hoping that you can shed some light for our Connecticut viewers on how to answer this question. Client comes in and says, “Amanda, I have an OnlyFans page. It has nothing to do with work. My employer knows nothing about it. I don’t talk about it at work. But out of the blue, I got called into a meeting by my employer, who said, ‘Hey, do you have an OnlyFans page?’ I answered truthfully and said I did, and an investigation ensued. Can my employer do this? Are my activities outside of work – my recreational activities on my own time outside of work that have nothing to do with work – any of my employer’s business? Do I have any legal recourse?”
Number one, I didn’t know what an OnlyFans page was. I understand now that it is a site that folks can use to create amateur pornography (amongst other things) and get subscriptions from viewers. So, Josh, my question is, what do I tell this potential client? Does someone have any recourse if their employer is taking action against them based on what they’re doing outside of work?
Goodbaum: Can you be fired for having an OnlyFans page? As with so many things in employment law, Amanda, it depends on who you work for and where you work.
So, if you work for the government, you have a right under the First Amendment to engage in free speech and not to be terminated for certain exercises of free speech, but only if that speech touches on what is called a matter of public concern. There was a case from the U.S. Supreme Court about 20 years ago that involved a police officer who was making pornography wearing a police uniform, though not (I think) his police uniform from the force he was on. The U.S. Supreme Court said, among other things, that making pornography is not a matter of public concern; this is not the kind of speech that is protected from termination for public employees; and so the officer had no claim. So, that’s the answer for public employees – that is, people who work for a government of any kind: the federal, state, or town-level government.
For private employees, they typically don’t have any First Amendment rights against their employer. But that’s not true in Connecticut. In Connecticut, because of our unusual statute codified at 31-51q, private employees have the same First Amendment protections, more or less, as public employees do. But the same analysis applies. Unless the making of pornography touches on a matter of public concern, the employee can still be terminated for it. Remember that if you are an at-will employee, you can be terminated for any reason or no reason at all, so long as it’s not an unlawful one. And it’s not unlawful to terminate someone for making pornography or having an OnlyFans page, at least in Connecticut.
There are some decent arguments that making pornography in certain contexts might be a political statement. And if that’s true, then the making itself might touch on a matter of public concern. But we’ve got the answer from the U.S. Supreme Court, and I think that’s the answer that’s likely to hold even under Connecticut law. w
Now, what I said about Connecticut isn’t true in every state. There are states that have what are often called “lawful off-duty conduct” laws. The parameters of them vary slightly from state to state, but the basic idea is that your employer can’t fire you for doing something on your own time that is legal and that has nothing to do with work. So, California has a law like this. Colorado has a law like this. I believe North Dakota has a law like this; there may be other states. And likewise, New York, although I don’t think it has a lawful off duty conduct law, does have a law that protects employee recreational activities, which is similar but not exactly the same.
So, if you are facing this issue in your state other than Connecticut, where you make amateur pornography in your spare time and it has nothing to do with work, and you’re concerned that you might be fired for it, you might want to talk to an employment lawyer in your state and/or just do some Googling and figure out, “Does my state have a lawful off duty conduct law, such that my making of pornography in my free time, that has nothing to do with work, might be a protected activity for which I can’t be terminated?”
DeMatteis: So interesting. Gives really good insight to Connecticut employees and employees all over the country about whether or not what they do outside of work impacts what happens to them inside of work. We never know; maybe Connecticut will catch up with some of these other progressive states.
Thank you so much, Josh, and thank you for watching. Take care.
Posted by Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. in Commentary
Tagged Amanda DeMatteis, Joshua Goodbaum
