Off-duty Activities

Some of us react to an employee engaging in “questionable” off-duty conduct by intervening and trying to control or stop the behavior. Others bury their heads in the sand and pretend they don’t know anything about the questionable conduct. Either of these responses may be appropriate or inappropriate, depending on the situation. What an employer can and cannot do often depends on federal, state, county and municipal laws, statutes and ordinances, collective bargaining agreements and pertinent case law.

George F. Galland, Jr., a Chicago attorney, says, “You’re probably taking some risk when you start poking your nose into your employees’ private lives, deciding if they’re virtuous enough to work for you and then holding it against them at work. That’s something the average person thinks is wrong, and the law usually follows the public’s thinking.”

A Balancing Act

When dealing with questionable off-duty conduct, you must balance both employee and employer interests. Many courts have ruled that employers may invade an employee’s privacy if there is legitimate business and/or employment reasons—these reasons may include a conflict of interest, an employee in a confidential or sensitive management position, or acts that endangered, injured, or jeopardized the employer’s legitimate business interests. In other words, your right to do anything about an employee’s off-duty conduct often depends on the relationship between the conduct and the employee’s job and/or your company. When faced with a situation like this, ask yourself the following questions:

• Is there a connection between the off-duty conduct and the employee’s on-the-job performance?
• Does the off-duty conduct publicly affect your company negatively?
• Is it necessary to the well-being of your company to interfere in the employee’s private life?

In some states, statutes protect an employee’s privacy rights unless the employer can show a bona fide occupational requirement for the restriction or a reasonable and rational relation between the restriction and the activities and responsibilities of the particular employee.

Ramifications

Employers who cross the line in dealing with off-duty conduct may find themselves entangled in a legal mess. In addition to legal concerns, interfering in your employees’ private lives can create resentment. If employees feel as though you have violated privacy rights, you may be faced with morale, productivity and retention issues. Further, how you handle these sensitive issues can have a long-term affect on your credibility, both among your staff and in the community.

Tips

• Tread cautiously when dealing with employee’s off-duty conduct. Don’t jump to conclusions or make rash decisions.
• Have well written and clear company policies that guide employee conduct.
• Train and educate managers about the areas of off-duty behavior or lifestyles that can and can’t be addressed.
• Familiarize yourself with applicable laws pertaining to off-duty behaviors.
• Remember—although many states have varying statutes on off-duty conduct, as a general rule, marital status, children and religion are entitled to remain private.
• Always work with a competent attorney when confronted by off-duty conduct situations.

For more information contact us.