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HR Matters
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This Week's Tip: Balancing Off-Duty Conduct Issues (Part 2 of 2)
Published by Personnel Policy Service, Inc.
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This Week's Tip: Balancing Off-Duty Conduct Issues (Part 2 of 2)
The control of off-duty conduct is a tough issue for many employers.
Find out what you need to know in approaching five of the most common
off-duty issues. .
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This Week's Tip:
Balancing Off-Duty Conduct Issues (Part 2 of 2)
In spite of potential legal limits (discussed in last week's E-Tips),
many
employers want to restrict employee off-duty conduct that may affect job
performance, reflect badly on the organization, or expose confidential
information or trade secrets. (In case you missed that article, click
here
for a copy:
http://www.ppspublishers.com/ez/html/012004txt.htm.
In last week's E-Tips, you learned about state restrictions on certain
legal
off-duty conduct. This week, you'll find out about the top five off-duty
issues confronting employers and how to approach them.
Specifically, employers typically want to control off-duty conduct in
these
five areas: outside employment, nepotism and fraternization, smoking or
use of other lawful products, conflicts of interest, and criminal
conduct.
The following discussion addresses the key issues involved in dealing
with these problem areas and suggests solutions.
* Outside Employment *
On one side, employers are concerned that "moonlighting" will lead to
divided allegiance, conflicts of interest, and poor job performance.
However, on the other side, most also recognize that employees take
second jobs for many legitimate reasons, including the need for extra
income and the desire to learn new skills.
In addition, both employers and workers are now embracing different
work arrangements that include the use of part-time and temporary help
and such innovations as job sharing and telecommuting. As a result,
attitudes toward outside employment and strict loyalty to one employer
are changing.
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That said, most employers still find that moonlighting policies are
needed
to help define the working relationship and protect against performance
problems and conflicts. When considering these policies, you should
balance your business needs with your employees' legitimate interest in
outside work. To control the situation properly, consider requiring
prior
notification and approval from employees before they seek or accept
outside employment.
In addition, any outside employment policy should identify and limit the
following behaviors:
1. Competition with the employer;
2. The performance or solicitation of outside business during paid
working time;
3. Use of the employer's tools or equipment for outside work;
4. Work for a competitor;
5. Any activity that would adversely affect the employer's image; and,
6. The use of certain paid absences for outside employment.
* Nepotism and Fraternization *
In the past, many employers imposed rules that prohibit the hiring or
retention of an employee's relatives and that forbid dating and
fraternization among coworkers. However, these types of policies are
controversial. Although courts generally uphold the employer's right to
have them, state laws prohibiting marital status discrimination and
discrimination based on off-duty conduct can greatly restrict their
practical application.
At the same time, these policies can lead to sex discrimination claims,
particularly if they have a disparate impact on females. In addition,
these
types of controls are difficult to enforce and may limit your ability to
hire
and retain talented employees. So, you generally are better off avoiding
outright bans and using more limited restrictions designed to control
supervisor/subordinate relationships, harassment, and possible conflicts
of interest. |
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* Smoking and Other Lawful Off-Duty Conduct *
Some employers have attempted to control health care costs by refusing
to hire smokers. Such policies probably are not legal in many states,
however. Over half of the states have "smokers' rights" laws that prohibit
employers from hiring only nonsmokers or from disciplining or
terminating employees solely because they smoke.
A few states, such as Colorado, Illinois, and New York, have enacted
even broader laws that prevent employers from firing or discriminating
against employees because they engage in lawful off-duty activities.
Examples of these protected activities include smoking, drinking alcohol,
and participating in certain political or recreational activities.
Accordingly,
you should consult legal counsel before implementing a policy that
impacts these areas. (Note, however, that you are not prevented from
regulating or restricting smoking or drinking on your premises or during
work hours.)
* Conflicts of Interest *
Employers typically are permitted to prohibit activities that conflict with
their legitimate business interests. This employer right is particularly
strong when the employee engages in competitive activities or publicly
criticizes, or otherwise embarrasses, the organization. (In some cases,
however, public policy does protect employees who might otherwise be
considered disloyal, such as "whistleblowers" who report an illegal
employer activity.)
Some employers require prior notice and approval of employee
participation in organizations and community affairs. Again, this
requirement should only be used narrowly to screen for activities which
might adversely affect the employee's hours of work and productivity, or
the employer's business interests.
* Criminal Activity *
Arrest and conviction records also pose a challenge for employers.
Many employers would prefer not to hire anyone with an arrest or
conviction record and to terminate current employees for certain arrests
or convictions. However, both of these actions can be risky, especially
when arrest records are the issue.
Many state laws (including California and Illinois) expressly prohibit
taking adverse action against applicants or employees because of
arrests or arrest records. In addition, the Equal Employment Opportunity
Commission (EEOC) takes the position that the refusal to hire, and the
discharge of, employees who have been arrested may violate
discrimination laws because of a disparate impact on minorities.
Some states also protect individuals who have been convicted of a crime
unless the conviction relates to the individual's job duties. Similarly, the
EEOC has determined that an employer may inquire about criminal
convictions, but a conviction should not be automatically used to
disqualify a job applicant or to take adverse action against a current
employee. Thus, you may be forced to weigh the risk of a discrimination
claim against the potentially more severe consequences of injuries and
liabilities caused by someone with a conviction record.
* Balance Everyone's Needs *
Unnecessary interference with off-duty activities generally is a lose-lose
proposition. You spend valuable time and resources imposing rules or
policies that often are virtually unenforceable, and you risk generating
employee hostility as well as a culture characterized by intrusion and
mistrust.
The best overall policy approach is one that narrowly addresses practical
business needs, without unduly interfering with employee off-the-job
freedom. If you properly assess the five problem areas outlined above,
the chances are good you can strike a win-win balance and develop
legally sound policies based on common sense business needs.
Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find a sample moonlighting policy in Outside Employment,
Chapter 208. For fraternization and nepotism rules see, Hiring, Chapter
202, note 28. For smokers' rights laws see, Smoking, Chapter 607, note
13. For a sample conflicts of interest policy see, Conflicts of Interest,
Chapter 806. For information on arrest and criminal records see, Hiring,
Chapter 202, note 25.
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