The news is full of stories of employers taking action, or allegedly not taking sufficient action, for employee off duty conduct. The issues are vast and varied, ranging from communicating views about coworkers’ intellectual capabilities, to using drugs with prostitutes in hotel rooms, to being “outed” for participating in a controversial and violent rally.
What is interesting from an employment law perspective, is whether and when a private sector employer can take action against an employee for off duty conduct. My partner wrote a blog post on the issue that focused on federal law and related First Amendment protections. But as is so often the case, California employers need to also comply with state laws that provide an extra layer of protection to employees.
In fact, California limits how much a private sector employer can do to regulate lawful off duty conduct occurring during nonworking hours off premises, including exercising free speech rights and engaging in political activity. Other states, including New York and Colorado, do so as well.
When faced with facts about an employee’s off duty conduct, I typically recommend a four step analysis.
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First, was the alleged conduct unlawful? Sometimes the answer is clear, such as shooting up illegal drugs. But for the worker attending a rally, that analysis is a bit more complicated and likely fact dependent.
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Second, was the alleged conduct a violation of any company policy? An employer can always enforce its various policies, including harassment prevention, conflict-of-interest, equal employment opportunity, prohibitions on illegal drug use, etc.
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Third, is the policy being enforced consistently? Inconsistent application of a legitimate policy can be considered discriminatory.
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And finally, does the company have a bigger picture goal to take a particular stand? Often it makes strategic sense for public relations, customer relations, and sometimes even employee relations purposes for a company to take a particular position on an employee’s off duty conduct, even if it results in some legal risk. Such calculated risks are part of everyday business decisions.
So, if an employee attends a political rally that is offensive to the employer’s views, a termination for that alone (without an associated policy violation) would be problematic. Or if an employee communicates with coworkers about a belief about one sex’s genetic lack of ability to be effective at work, and that employee has no supervisory authority, then a termination could run afoul of applicable law (not to mention get the attention of the NLRB as protected concerted activity). Or if an executive takes drugs in a hotel room all night long, but comes to work and performs fine, then addressing that conduct could be problematic. The particular facts of each situation matter.
The reality is that the steps a private sector employer can (and should) take are actually more nuanced than what the normal knee-jerk reaction would suggest. And one could certainly argue that is the way it should be. Should an employer really police what its employees do after hours? Does it matter if it doesn’t impact their job? Where is the line where such conduct does impact the job (or the employer’s brand)? The answer may be clear when the conduct is blatantly illegal or an unambiguous policy violation, but short of that, the line can be very blurry indeed.
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