Employers Can Legally Control Off-Duty Conduct-Sometimes!
The question of whether or not an employer can control off-duty conduct is very common. Employers can control some off-duty conduct but they really have to be careful. Federal law is silent on the issue but thirty states prohibit employers from taking action against employees if they participate in “lawful activities” such as smoking (cigarettes). Some employers have had policies that prohibit employees from smoking at all (smell in their clothes, and they bring that odor into the work environment was one employers logic). On the flip side an employer can take action against an employee for sexually harassing a co-worker after hours because the behavior could create a hostile working environment when both employees return.
A more common situation occurs when an employee who drives a company vehicle (while on duty) gets a DUI while off-duty and that information is picked up by the employers’ insurance company who in turn informs the employer that they will not insure that individual if he drives any company vehicle. If a company is placed in legal or financial jeopardy, the courts are more willing to permit the employer to take action. In this scenario, employers need to have employees who drive any company vehicle sign off that they understand that if they do not maintain a proper driving record they could be subject to disciplinary action up to and including termination. This extra step also helps employers fight off an unemployment claim by the terminated employee (California in particular).
Any policy that involves off-duty conduct should focus on how the behavior affects the individuals’ job performance. Watch overly broad non-fraternization policies either with co-workers or competitors. If you are concerned that employees who fraternize with competitors may be giving away company secrets then have them sign a nondisclosure agreement and if they violate the policy then terminate them.
These off-duty conduct issues always involve an employees’ right to privacy. You can only invade that privacy if you can prove that it has a direct impact on the individuals’ job performance.
