HR Matters E-Tips
Balancing Off-Duty Conduct Issues (Part 1 of 2)

The issue of employee off-duty conduct requires you to strike a balance
between legitimate business needs and employee desires for freedom
when off the job. The right formula includes a healthy dose of common
sense combined with a respect for employee privacy and legal rights.

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You have an employee who is working a second job. Another has taken up skydiving. A third is rumored to be dating someone at a competing organization. You're concerned that these activities may harm your organization through productivity losses, increased health care costs, or the misuse of trade secrets. But, can you do anything about employee off-duty behavior? Your first instinct may be to prohibit these types of activities all together. While you do have some rights to regulate employee off-duty conduct, the imposition of restrictions can be tricky and counterproductive. For example, as discussed below, many states limit an employer's ability to regulate certain off-duty conduct if it is legal. Even in states that do not have these laws, rules concerning legal off-duty conduct are difficult to enforce and often are resented by employees as an intrusion into their personal lives. As a result, your best approach is to deal with off-duty conduct only when it has a direct negative effect on the organization or on the employee's performance. In many cases, conflicts can be avoided or resolved by setting practical guidelines and avoiding unnecessary interference with employee free time. In this week's E-Tips, you'll find out about the different laws that can affect your right to regulate off-duty conduct. Next week, you'll learn about the five nonwork activities employers most often want to regulate and how you should approach them. Limited Right to Regulate Conduct From a legal perspective, your right to monitor employee behavior depends on the situation surrounding the issue in question. Employers generally may regulate employee conduct during working time and most other time spent on the work premises. This principle is broadly accepted because rules of behavior are necessary for orderly business operations and a productive work environment. However, your right to prohibit off-the-job activities is much more limited. While no federal law directly addresses the issue for private employers, the right to control activities during both nonworking hours and time away from the workplace has been restricted in many states by laws and court decisions. (Public employers should note that constitutional restrictions place additional limitations on your ability to control employee off-duty activities. An example is the right of public employees to engage in certain activities as an expression of free speech, which is protected by the First Amendment.)

Some state statutes protect only certain types of off-duty conduct, such as smoking and drinking. Others prohibit regulating any off-duty conduct that is legal, except when a restriction is reasonably related to employment issues. Examples of state statutes addressing the issue include: -- California. Preserves employee rights to engage in political activity. (See Cal. Lab. Code. §1101(a) and (b)).) -- Colorado. Prohibits the regulation of, or discrimination based on, off- duty conduct, unless a restriction is reasonably related to employment or is necessary to prevent a conflict of interest. (See Colo. Rev. Stat. §24- 34-402.5(1) and (2).) Colorado also protects employees' rights to engage in political activity. (See Colo. Rev. Stat. §8-2-108.) -- Illinois. Prohibits employers from refusing to hire, discharge, or otherwise disadvantage an individual regarding compensation, terms, conditions, or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours. (See 820 ILCS 55/1 et. seq.) -- New Jersey. Prohibits employers from refusing to hire applicants who smoke or use any tobacco product, including snuff and chewing tobacco. In addition, employers may not discriminate against these persons in any term, condition, or privilege of employment, although they may make distinctions between smokers and nonsmokers if the basis is rational and reasonably related to employment. (See N.J. Rev. Stat. §34:6B-1.) -- New York. Prohibits employer regulation of, or discrimination against, employees who engage in any legal off-duty recreational or political activity. (See N.Y. Lab. Law §201-(d).) (Interestingly, this statute apparently does not protect dating. In New York v. Wal-Mart Stores, 207 A.D.2d 150 (N.Y. App. Div. 1995), the court determined that the statute did not protect two employees who were discharged for dating each other in violation of their employer's rule against dating between married and unmarried employees. The court found that dating is not considered a "recreational activity" under the statute.) -- Wisconsin. Prohibits employment discrimination based on the use or nonuse of lawful products off the employer's premises during nonworking hours. (See Wis. Stat. Ann. §§111.31 and 111.321.) In addition, state courts often have been reluctant to allow regulation of employee off-duty conduct unless the employer can show the existence of an actual conflict with the organization's best interests. Next week: The five nonwork activities employers try to regulate and how you should deal with them: moonlighting, dating, smoking, conflicts of interest, and criminal conduct. Subscribers to the Personnel Policy Manual and HR Policy Answers on CD can find more information on the legal issues of regulating off-duty conduct in Outside Employment, Chapter 208, note 12; Smoking, Chapter 607, note 13; and Behavior of Employees, Chapter 801, note 9. If you do not subscribe to the Personnel Policy Manual or CD service, and you'd like to use it free for 30 days to see if you like it, go to: http://www.ppspublishers.com/service2.htm Or just give us a call toll-free at 1-800-437-3735.
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