Can an employee be disciplined for off-duty conduct?
Posted October 13, 2016
By Kyra Kudick, associate editor, J. J. Keller & Associates
While employers may restrict an employee’s behavior at work or when performing work-related duties at another location, the off-duty conduct of employees is a slightly different matter. Employers are more limited in their ability to control employees’ off-duty conduct because of privacy and discrimination laws.
Generally, for an employer to take employment action (e.g., discipline, termination, etc.) based on an employee’s off-duty conduct, there should be some relationship between the conduct and the employee’s job or the employer’s business.
State laws may also impact an employer’s ability to take action because of an employee’s off-duty conduct. Some state laws expressly prohibit employers from discriminating against employees for engaging in lawful off-duty conduct – for example, smoking tobacco or participating in protest demonstrations.
To further complicate matters, some state laws regarding the use of criminal records in employment decisions restrict the actions of an employer even in situations where the off-duty conduct may not have been lawful.
Before creating policies and procedures for handling off-duty conduct, employers should understand state laws regulating their own actions, and consult with legal counsel.
Protections for lawful activity
In total, 29 states (including Wisconsin) and the District of Columbia have laws that protect employees from adverse employment actions based on their lawful off-duty activities. These statutes provide three different levels of protection: the use of tobacco products only, the use of lawful products, and participation in lawful activities on non-work time.
Protections for arrests, convictions
It is important to note that an arrest, and even subsequent charges, does not establish guilt.
The U.S. Equal Employment Opportunity Commission (EEOC) says that employment decisions based on an arrest alone are not job related and consistent with business necessity, and many states have laws that specifically prohibit employers from denying employment or discharging employees based only on an arrest.
According to the EEOC, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action, and an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.
Under federal law, the EEOC mostly addresses criminal convictions in the hiring process, and recommends that employers consider the gravity of the criminal offense, the time that has passed since the offense or time served, and how the nature of the offense may relate to the specific job sought.
Some state laws, however, require that a conviction be specifically job related in order to deny employment to an applicant or discharge an employee. This means that while an employer may find certain offenses distasteful, there would need to be a legitimate job-related reason to terminate employment.
When crafting policies and procedures, employers need to decide what they will do if misconduct outside of the workplace raises concerns in the workplace or poses a risk for the business.
What if an employee is arrested for assault or domestic violence? What if an employee is on the news expressing his or her racist viewpoint?
Establishing a process for evaluating these situations will allow employers easier handling. They should consider the following:
- The nature of the business,
- The employee’s responsibilities and specific job duties,
- The effect of the off-duty conduct on coworkers, customers, and the company’s reputation,
- The seriousness of the allegations.
If there is a sufficient connection between the job and the misconduct (for example, if a delivery truck driver is arrested for operating a vehicle while intoxicated), taking some sort of action may be justified. In the absence of any such connection, however, adverse employment action may not be warranted.
About the author:
Kyra Kudick is an associate editor at J. J. Keller & Associates, Inc., a nationally recognized compliance resource company that offers products and services to address the range of responsibilities held by human resources and corporate professionals. Kudick specializes in employment law/HR issues such as employee relations, hiring and recruiting, and training and development. She is the author of J. J. Keller’s Employee Relations Essentials manual and SUPER adVISOR newsletter. For more information, visit www.jjkeller.com/hr.