Employers can regulate the on-duty conduct of their employees as long as they do not violate any law in the process. But can an employee's off-duty conduct also be regulated? What if an employee's conduct contradicts and employer's moral or political beliefs? Below we address whether, and to what extent, an employee's off-duty conduct can be regulated by an employer.
Lawful Off-Duty Conduct. Several states, including but not limited to California, Colorado, Illinois, Minnesota, Montana, Nevada and North Dakota, have laws that prohibit employers from taking adverse action against employees for engaging in lawful off-duty activities, or using lawful products while off-duty. For example, in come states, employers are prohibited from taking adverse action against an employee for drinking alcohol, consuming tobacco products, carrying a fire arm or gambling while off-duty. Some states have broader protections.
Arrests. Many states prohibit employers from taking adverse action against employees because of arrests or arrest records. In addition, the Equal Employment Opportunity Commission (EEOC) has stated that, taking an adverse employment action against an applicant or employee solely because of an arrest record may result in a violation of nondiscrimination laws. According to the EEOC, Title VII calls for a fact-based analysis to determine if an exclusionary policy or practice is job related and consistent with business necessity. Therefore, an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. The EEOC provides further that, "[a]n arrest, however, may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action." The EEOC also states that, "[a]nother reason for employers not to rely on arrest records is that they may not report the final disposition of the arrest (e.g., not prosecuted, convicted or acquitted)." Click here for general EEOC information on arrests, and to review enforcement guidance on Arrest and Conviction records.
Convictions. Some states protect applicants and employees who have been convicted of a crime unless the conviction relates to the individual's job duties. It is not a best practice for employees to automatically take an adverse employment action against an employee because of a criminal conviction. Rather, the EEOC recommends that employers conduct an individualized assessment (an evaluation of a variety of factors, such as the facts surrounding the offense, history of offenses, and rehabilitation efforts) before taking an adverse action against an employee on the basis of a criminal record. Click here for more information on the EEOC's guidance.
Concerted Protected Activity. Under the federal national Labor Relations Act (NLRA), employees have the right to act together to improve wages and working conditions, and to discuss wages, benefits, and other terms and conditions of employment. If employees engage in this "concerted protected activity," they are protected from being subjected to adverse employment action for doing so. For example, if employees discuss improving their wages or whether to join a union, in or out of the workplace, in person or on social media, the employer may generally not take adverse action against the employees.
Social Media. Employee's social media activity may also be protected by various laws, including those covering lawful off-duty conduct, and NLRA (discussed above). For example, if an employee is terminated because their social media posts indicated they filed a discrimination lawsuit against a former employer, or took job-protected leave, this could violate anti-retaliation provisions of various laws. Additionally, if an employee is disciplined for posting grievances concerning their pay or working conditions, and other employees commented on those posts, that discipline could violate the NLRA.
Sexual Harassment. There are certain situations where an employer can expect their employees to comply with the company's policies while off-duty. For example, an employee can be expected to abide by an employer's sexual harassment policy after hours and outside of the workplace. Sexual harassment of employees or a third party (such as a client, customer, vendor, or independent contractor) after hours and outside of the workplace could negatively impact the employer's business, create a hostile work environment, and violate employment laws. Again, this will be fact-specific.
Medical Marijuana. Several states currently permit the use of medical marijuana. Some of these laws explicitly offer some form of protection from employment discrimination for medical marijuana users. For example, some expressly prohibit employers from making employment decisions solely on the basis of a person's status as a medical marijuana user. In these states, the employer may be required to:
- Give the individual the opportunity to produce proof that a positive drug test result was due to medicinal use; and
- Make an individualized assessment as to whether the medicinal use of marijuana would interfere with the individual's essential job duties and responsibilities.
A few states prohibit discrimination against individuals because they test positive for marijuana, unless the individual used, possessed, or was impaired by marijuana in the workplace or during work hours. In these states, employers may be required to show they have a reasonable suspicion of use, possession, or impairment (along with a positive test result) on the job before taking disciplinary action against an individual.
Because marijuana remains a controlled substance under federal law, employers need to be mindful that some states require conduct to be lawful under both federal and state law to be protected under off-duty conduct laws. where applicable, employers should also consider state and federal rules that may govern the use of medical marijuana in safety-sensitive positions.
Before making any employment decisions resulting from an individual's use of medical marijuana, check your state law and work closely with legal counsel to determine your rights and responsibilities.
Moonlighting. Some employers adopt policies restricting employees from working second jobs while employed with the company, particularly if the job poses a conflict of interest. In states with broad protections covering lawful off-duty conduct, employers may be required to show this type of restriction protects a legitimate business interest. For instance, the employer may be required to show that the second job would interfere with business operations or is with a company that is in competition with their company. For this reason, consider drafting any restrictions on outside employment carefully.
Political Activities. With the upcoming election, an increase in political discussions and activities is inevitable. When this happens, keep in mind that some states and local jurisdictions prohibit employers from attempting to influence employee's votes or retaliating against employees on the basis of their political beliefs and activities. Some states' off-duty protections may also apply to their engagement in political activities. For these reasons, avoid taking adverse action against employees on the basis of their political affiliations and/or activities.