If an employee engages in off-duty conduct that an employer considers problematic, the employer’s first instinct may be to take action. However, there are federal, state and local laws that protect certain types of off-duty conduct. To help employers understand these protections, here are eight situations in which employers may want to exercise caution before disciplining the employee.
Scenario #1: An employee is arrested.
Background: Many states prohibit employers from taking adverse action against employees because of arrests or arrest records.
In addition, the Equal Employment Opportunity Commission (EEOC) states that such action solely because of an employee's arrest record may result in a violation of nondiscrimination laws.
However, in some circumstances, an arrest may trigger an inquiry (such as an investigation into the facts and a chance for the employee to explain the circumstances) into whether the conduct underlying the arrest is job-related and justifies an adverse employment action, according to the EEOC.
Before disciplining an employee for an arrest that occurred outside of work, review your state law, investigate whether the underlying behavior is job-related, and consult legal counsel.
Scenario #2: An employee is convicted of a crime.
Background: Some states protect employees who have been convicted of a crime unless the conviction relates to the individual's job duties.
The EEOC also advises that employers should avoid blanket policies under which they automatically take an adverse employment action against an applicant or employee because of a criminal conviction.
Rather, the EEOC recommends that employers evaluate the facts surrounding the offense and the individual's history of offenses and rehabilitation efforts.
Review the EEOC's guidance for more information, understand applicable laws, and seek legal counsel before taking an adverse employment action because of a conviction.
Scenario #3: An employee is using marijuana while off-duty.
Background: Many states permit medical marijuana, and some also permit recreational marijuana use. While none of these laws require employers to allow employees to use, possess, or be impaired by marijuana during work hours or in the workplace, some states have employment protections for employees who use marijuana outside of work.
For example, some states prohibit employers from making employment decisions based solely on a person's status as a medical marijuana user or cardholder.
Additionally, a few states prohibit discrimination against individuals because they test positive for medical marijuana, unless the individual used, possessed, or was impaired by marijuana in the workplace or during work hours.
Certain states also offer protections for individuals who use recreational marijuana while off-duty.
Before testing for marijuana and/or making any employment decisions resulting from an individual's use of marijuana, check your state and local law, and work closely with legal counsel to determine your rights and responsibilities.
Scenario #4: Employees are discussing their wages with one another after work and on social media and it's causing discord.
Background: Under Section 7 of the 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. The National Labor Relations Board (NLRB), which enforces the NLRA, and many courts have found that pay secrecy or pay confidentiality rules violate Section 7 rights. Additionally, some states and local jurisdictions expressly prohibit pay secrecy policies.
Scenario #5: Employees are smoking and engaging in other lawful off-duty conduct.
Background: Several states, such as 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. In some of these states, employers are prohibited from taking adverse action against an employee for engaging in specific activity, such as drinking alcohol, consuming tobacco products, carrying a firearm, or gambling while off-duty. Other states have broader protections that cover all lawful off-duty conduct.
Scenario #6: Two employees are dating.
Background: In states with broad protections covering all lawful off-duty conduct, employee dating outside of work is likely protected.
Even in the absence of such protection, an employer might have difficulty enforcing an outright ban on all workplace dating. However, concerns about favoritism, conflicts of interest, and sexual harassment may arise. With these concerns in mind, many employers draft policies to help minimize the impact of workplace romances. For guidelines on developing a policy, review this recent Tip of the Week
Scenario #7: An employee is storing a gun in their car parked in the company lot.
Background: Several states prohibit employers from banning firearms stored in employees' private vehicles parked on company property.
However, employers may generally prohibit employees from carrying weapons into the workplace. This includes bans on firearms in company facilities and in the course of the employee's work duties, even if they have a concealed weapon permit. Some states may require employers to first post a notice in order to prohibit guns in the workplace. Check your state law for details.
Scenario #8: An employee is moonlighting.
Background: Some states and local jurisdictions have laws that may expressly prohibit employer policies that restrict outside employment.
Additionally, in states with broad protections covering all lawful off-duty conduct, employers may be required to show that prohibiting outside work 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 competitor.
Even in the absence of prohibitions, it isn’t considered a best practice to ban all outside work. Draft policies on outside employment carefully and consult legal counsel as needed.
Conclusion
Make sure you understand the various federal, state and local laws that protect off-duty conduct. Even when there is no specific protection, it's generally a best practice to base decisions on job-related information only.
Share on social
