Overview: An employee's off-duty conduct covers a wide variety of issues, such as smoking and the use of other lawful products; arrests, convictions and criminal activities; illegal drug use; moonlighting and outside employment; political and religious association and expression; social media communications; and marriage, personal relationships and sexual orientation.
An employer has a valid interest in monitoring the off-duty conduct of employees as such activities may affect employee productivity and performance in the workplace. Whether monitoring outside employment and social media communications which may put the employer's trade secrets and confidential information at risk or seeking to restrict romantic relationships between employees and supervisors, an employer may seek to create workplace policies to regulate the off-duty conduct of employees. However, it is critical that an employer balance the employee's right to privacy and and the right to engage in lawful off-duty activities with the employer's right to protect its business. Additionally, public employees have a constitutional right to privacy which prohibits the government from monitoring their off-duty activities while private employees may enjoy a general right to privacy and right to be free from intrusion into their private affairs.
On the other hand, some state and local laws specifically prohibit an employer from discriminating against an employee or applicant based on the individual's off-duty conduct, such as the use of tobacco products or any other lawful products or involvement in political, union or religious activities, sexual preference or marital status. Therefore, an employer may wish to reiterate this in its discrimination and harassment policies and advise those with hiring and supervisory responsibilities that this off-duty conduct may not be taken into account in making any employment decisions. However, an employer may seek to take action against those employees who engage in illegal off-duty conduct such as drunk driving, drug use or gambling which threatens the safety and security of the workplace, the employee's performance or the employer's business interests. Doing so will likely minimize the employer's liability, protect the employer's reputation, maintain employee productivity, and avoid workers' compensation and third party negligence claims.
Trends: There is a renewed interest among the federal and state legislatures as well as the EEOC in prohibiting employers from either questioning applicants about their criminal convictions and arrest records or using criminal background checks and information to screen out potential employees unless it would specifically impact the individual's ability to do the job in question. Further, employers should be aware that there is also a trend to pass legislation which would prohibit employers from requesting or requiring that employees and applicants provide user names, passwords and other ways of accessing personal information on social media as a condition of employment. In effect, this legislation protects the individual's right to privacy and prohibits the employer from accessing valuable and possibly damaging information regarding an individual's religion, sexual orientation, marital status and other off-duty activities and associations which could lead to potential discrimination in the workplace. Employers should also know that a significant number of states have taken steps to legalize marijuana for medical purposes. However, employee use of marijuana for medical purposes during off-duty hours may potentially impact employee activity in his or her workplace. Employers need to be aware of the relevant state law and how to address this.
Author: Beth P. Zoller, JD, Legal Editor
Updated to reflect forthcoming Kansas City 'ban the box' law.
Updated to incorporate provisions governing the off-duty use of marijuana, effective February 1, 2018.
Updated to incorporate Maine Marijuana Legalization Act provision, effective February 1, 2018.
Updated in light of the NLRB General Counsel memo 18-02 concerning employer rules and other significant workplace issues.
Updated to include amendments to the state public health law regarding vaping, effective November 23, 2017; to reflect retaliation protections under the New York City Fair Work Practices ordinances, effective November 26, 2017; and to include amendments to the New York City Earned Sick Time Act.
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Updated to reflect retaliation protections in forthcoming amendments to the Division of Occupational and Professional Licensing Act.
HR Guidance on addressing when employers may and may not monitor the off-duty conduct of employees and take such conduct into account when making employment decisions.