Off-Duty Conduct: Enforcing Workplace Policies Outside the Workplace
By Matthew Simpson Attorney, Atlanta Office of Fisher & Phillips LLP | July 20, 2014
Nearly every employer has enforced written policies regulating conduct at the workplace. However, few have taken the time to think about effective and lawful policies that regulate employee behavior after hours and outside the workplace. Today, in the age of social media and smartphones, employees have much greater visibility when they leave work, resulting in increased exposure and potential for harm to an employer's reputation. So, can employers monitor or discipline employees for policy violations that occur when an employee is off-duty and off-premises?
Regarding illegal off-duty conduct, employers are generally entitled to take action after learning of an employee's conviction, although depending on the state, they may have to demonstrate that the decision or policy is job related and consistent with business necessity. For instance, an employer would have a valid interest in a housekeeper's recent conviction for theft or a shuttle driver's recent conviction for drunk driving. In fact, failing to take such remedial action could lead to a claim for negligent hiring or retention against the employer down the road.
But what about an employee's lawful off-duty conduct such as political activism, social media postings or tobacco use? The answer becomes slightly more complicated. Employees have a right to be free from their employer's control when away from work and engaging in personal business. On the other hand, employers have a desire to minimize liability, uphold reputation and maintain employee productivity. In many ways, lawful off-duty conduct can be just as harmful to the employer's reputation as unlawful off-duty conduct.
In an at-will employment relationship, both the employer and the employee can end the employment relationship without notice or reason. In other words, the employer has the right to terminate an employee at any time, for any reason, for no reason at all or for a bad reason, as long as it is not an unlawful reason. Unfortunately, the practical application of this employment-at-will doctrine is not as straightforward as it may seem. To determine what reasons are "unlawful," one must look to federal, state and local laws. Although most employees believe they are completely free from the employer's control when they are away from work, that is not the case. Employers may have more leeway than they (or their employees) realize.
Federal law clearly outlines many factors that would be unlawful reasons for making employment decisions such as race, color, religion, genetic information, national origin, sex (including same sex), pregnancy, childbirth, or related medical conditions, age, disability or handicap, citizenship status and service member status. Similarly, federal law prohibits making employment decisions based on whether an employee has taken time off under the Family Medical Leave Act, made a safety complaint to OSHA, questioned the overtime practices of his or her employer or filed a charge of discrimination or harassment. In addition, the Equal Employment Opportunity Commission has provided guidance related to making employment decisions based on arrests and convictions.