Employee’s Life Off the Clock

Is an employee’s time off-the-clock any business of their employer? Possibly. There can be a fine line between respecting an employee’s private time, while trying to keep the reputation and integrity of the company in check. The question then becomes, when is this line crossed?

Employees need to be aware that they may not be protected or expect a right to privacy if they post their thoughts or activities publicly on the internet. However, employers need to bear in mind that there are certain lines that should not be crossed.

These lines can include, but are not limited to:

Religious Freedom
Religious freedom is a protected right under the U.S. Constitution. Employers cannot cross the line by asking about religious beliefs or disciplining an employee for attending religious events or writing about their beliefs on their personal social media page.

Union Activity
The National Labor Relations Act (NLRA) protects employee’s right to organize. Employers cannot infringe on an employee’s right to attend union functions or promote union activity on their own time or on their personal social media page.

Legal & Lifestyle Activities
Employees are free to participate in legal activities while on their own time. Drinking and smoking are all considered legal activities and generally employers cannot dictate when, where, or how an employee can participate in these activities. However, since there isn’t federal protection for smokers, some employers have in fact terminated employees for smoking while off duty in order to establish and maintain their wellness program. This is one activity that may continue to show up on court dockets.

Legal activities can also include moonlighting. Unless a company has a specific “no-moonlighting” policy that limits or prohibits outside employment, working another job is not illegal activity.

Employers should not discipline or terminate for lifestyle choices while off the clock. These activities may include at-risk physical hobbies such as motocross or car racing, mountain/rock climbing, wrestling/boxing, sky-diving, parkour, etc. This can also include sexual preference, cross-dressing, going to gender-specific clubs, belonging to or attending group events, such as LGBT parades.

Note: At least 29 states have legislation to protect employees from discrimination or retaliation for participating in legal and lifestyle activities. Most of this legislation does include smokers.

So…is it ever ok to discipline or terminate an employee for activity while off duty? This can be a tricky situation for employers. It is the burden of the employer to prove that an off duty activity has a negative effect on their company or is harmful to their reputation in the community.

As in all cases, there may be some identifiable instances when an employer may be able to discipline or terminate an employee for personal activity. But first, companies should establish specific policies that hold their employees to their standard of conduct. By outlining your beliefs for employees, they have an idea of what is expected behavior. Naturally, such policies may have a higher level of expectation for the management and officers of the organization, but all employees should know that abiding by the company’s policies is part of their continued employment.

How do company policies parlay into personal time?

Having specific policies in place can give employers some leverage in the discipline or termination process. For instance, a Harassment Policy should address what behavior an employer expects while an employee is on and off the clock. Of course an employer can discipline for harassing behavior while the employee is at work, but if the harassing activity negatively impacts other employees or individuals in the community while off the clock, then it may also result in discipline or termination.

Companies can also consider whether the behavior can harm their image or reputation. If the off the clock activity causes embarrassment to the company or is criminal in nature, there may be grounds for action. Example…if the company is of a charitable, religious, or family-oriented nature and an employee posts a derogatory comment or picture of themself in a compromising position, such as getting drunk or sexual or illegal in nature and it can be traced back to the employee’s employer, then the company may have a case. Therefore, a company policy should address the behavior as well as what they allow for use of company property, pictures, logos, information, etc.

Employers need to be careful in their decision to discipline or terminate. The decision must not violate a civil right or state or federal regulation. Before action on an off duty activity, employers should consider the following:

  • Did the activity break any laws?
  • Did the activity impact our image or reputation?
  • Will the activity make our customers feel uneasy or stop using our product or service?
  • Will the activity make other employees feel uneasy working with the employee in question?

Conclusion…review your handbook and update or create policies that address your specific expectations for employee conduct and ALWAYS consult with your legal counsel before making a disciplinary or termination decision based on an employee’s off duty activity.

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EAF provides information about current developments in labor and employment law. This information is intended for educational purposes only and should not be considered legal advice. Questions requiring legal advice should be addressed to the attorney of your choice. EAF members may be able to obtain a legal interpretation through our FREE Legal Hotline.