Can Employees Be Fired for Off-Duty Conduct?

HR
professionals should be aware of state laws that protect employees’ right to
engage in lawful activities outside of work,

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It’s understandable for
employers to be concerned about workers’ off-duty activities that may affect
job performance or the company’s image—but employers must ensure that their
policies don’t violate state laws that protect employees’ lawful conduct
outside of work.

Nearly 30 states have
some level of protection based on lawful off-duty activities. These protections
typically vary from the limited coverage of tobacco use to a broader protection
to use all lawful products, explained Aimee Delaney, an attorney with Hinshaw
& Culbertson in Chicago. Furthermore, some states protect employees who engage in
political activities
outside of work, and
others protect all lawful off-duty activities. 

Alcohol and Tobacco

Employers are highly
regulated entities, and off-duty conduct is an area where there are lots of
potential traps for the unwary, said John Koenig, an attorney with Barnes &
Thornburg in Atlanta.

Some employers may want
to refrain from hiring workers who use tobacco and alcohol  in order to
promote a healthy workforce and save on any associated costs related to health
care and absenteeism. But doing so could get an employer into legal trouble.

In New York, for example,
employees can’t be fired for consuming legal products—such as tobacco and
alcohol—outside of work. It’s possible that medical marijuana use could be
protected under such laws, Koenig noted.

However, off-duty
consumption that carries over into the workday can likely be disciplined. An
employee may legally have a beer or martini while clocked out for lunch, but
that doesn’t mean an employer can’t take action if the employee is under the
influence at work, said Bruce Millman, an attorney with Littler in New York
City.

Furthermore, some state
laws have exceptions for employers whose primary purpose is to discourage the
public from using such lawful products. In a state with this type of law,
for example, the American Lung Association could likely refuse to hire an
applicant or could fire an employee who uses tobacco, Delaney said,

Social Media

Personal information
about job applicants and employees is only a Google search away, said Hannah
Sorcic, an attorney with Reed Smith in Chicago. But state law may limit what
employers can search for online.

At least half of the
states have laws that restrict an employer from accessing employees’ and
applicants’ personal social media accounts. These laws vary significantly from
jurisdiction to jurisdiction, though many prohibit employers from requiring job
applicants or employees to disclose their social media usernames and passwords
as a condition of employment.

“Therefore, it is
extremely important to understand the prohibitions and potential damages of
local social media laws before going down the rabbit hole of online
information,” Sorcic said.

Additionally, employers
that discipline workers for their social media activity may run afoul of the
National Labor Relations Act (NLRA)—which gives employees the right to engage
in protected concerted activity.

Social media use and
related policies have been a huge focus of the National Labor Relations Board
(NLRB), Koenig said, noting that NLRA rights aren’t limited to employees at
unionized worksites.

Millman said that the
NLRB has found that some social media posts are protected under the NLRA even
if they sound disloyal to the business.

For example, employees
who post comments on Facebook about their wages or working conditions or
“like” co-workers’ comments about the same topics are likely engaging
in protected concerted activity. An employer could be committing an unfair
labor practice if it disciplines an employee for such a post, Millman said.

Employers should
carefully review their written policies to ensure that they can’t be
interpreted as limiting employees’ rights under the NLRA. In addition to social
media policies, employers should look at their fraternization and other
policies that could conceivably limit such rights, he added.

With ever-changing laws
and NLRB opinions, it is a challenge to maintain an up-to-date social media
policy that complies with federal, state and even local laws, Sorcic
noted. She suggested that employers review their social media policies
annually. Often, the interests that employers want to protect, such as preventing
disclosure of confidential information or preventing employees from speaking on
behalf of the employer without authorization, can easily be addressed through
other policies, she added.

Moonlighting

Can employers prohibit
employees from working a second job? As with most legal matters, the answer is,
“It depends.”

Though employers may want
to ensure workers are focused on their primary job, moonlighting policies are
always a bit tricky, Koenig said. Such policies may raise privacy issues.

Focus on the business
needs, he recommended. For example, there may be a conflict of interest if an
employee wanted to work for a competitor or for a vendor in the same industry.

If employers are afraid
that moonlighting will make workers less productive, they should focus on
actual performance issues.

It’s also fine for
employers to prohibit workers from using company equipment for outside
activities, Koenig added. For example, employers can say that workers can’t use
the company car to drive for a ride-share service or use the copier to make
flyers for a dog-walking business.  

Best Practices

Employers should
understand the specific laws that apply in the jurisdictions where they do
business and regularly update their policies accordingly. This can be
challenging for multistate employers, as more and more regulations are
happening at the state and local levels, Delaney said. 

For ease of
administration and to avoid legal risks and mistakes, an employer may want to
identify the most restrictive applicable rule on a given issue and adopt that
rule across all its locations, she suggested. 

When it comes to off-duty
conduct, employers should make decisions based on how the conduct is
work-related, Millman said. This is true even in a state where there aren’t
specific protections for off-duty activities, he noted, because the employer
may have to demonstrate a legitimate, nondiscriminatory reason for a
termination if a fired employee sues under an anti-discrimination law. 

Before an employee is
disciplined or fired for off-duty conduct, it is best to go through the same
analysis that applies to any other termination, Koenig said. For example:

§  Is the employee at-will?

§  Is there an employment agreement or collective
bargaining agreement that governs the work relationship?

§  Did the employee engage in protected activity?

§  What federal, state or local laws might apply to the
circumstance?

Employers should make
sure they have all the facts. They should avoid any knee-jerk reactions and
fight the impulse to take any immediate actions, Delaney
said. "Employers are always better served when they take the time to
assess all of the risk factors involved in such a decision.“

Company policies can be
difficult to come up with and enforce, especially if the employee is off-duty.
At Converge HR Solutions, we offer an HR Outsourcing service which covers all
of your companies needs when it comes to Human Resources. This specific service
offers handbooks & policies so that each employee within your company
understands what is required, and what the company views as misconduct.  In addition to the handbooks and policies, we
will ensure that your policies are compliant and correspond with state laws
that protect employees when they are not in the workplace.  If you would like to learn more about what
else the HR Outsourcing service provides, or are interested in any of the other
products and services Converge has to offer, visit our website at https://convergehrsolutions.com/, email us directly at info@convergehrsolutions.com or give us a call at 610-296-8550.

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