Common sense would seem to indicate that an employer should not be able to fire an employee for doing or saying something away from the workplace and off the clock. Right? Well, not so fast. Employers may have more leeway than they (or their employees) realize.
A long-standing and strong tenant of employment law in the United States is employment at-will. The employment at-will doctrine provides that either an employer or an employee can choose to enter into, stay in, or end the employment relationship for any reason at all — good or bad — as long as the reason is not an unlawful reason. If the practical application of the doctrine were as straightforward as the doctrine, no one would be reading this blog.
As you might suspect, the “trick” in applying the doctrine is the definition of what is an unlawful reason for termination. Federal law clearly outlines many factors that would be unlawful reasons for making employment decisions such as race, religion, genetic information, national origin, sex (including same sex), pregnancy, childbirth, or related medical conditions, age, disability or handicap, citizenship status and service member status. Likewise, federal law prohibits making employment decisions based on whether an employee has taken time off under the Family Medical Leave Act, made a safety complaint to OSHA, questioned the overtime practices of his or her employer, filed a charge of discrimination or harassment, etc. Further, the Equal Employment Opportunity Commission has issued guidance related to making employment decisions based on arrests and convictions.
Next, employers must consider state and local laws, as well. Nearly all states have laws that are similar to or mimic federal law. Many states, however, have laws that are much more expansive and protective of employees’ rights. Many states have laws protecting smoking, elections and voting, certain types of court-related leaves of absence, victims of crimes and/or abuse, medical marijuana, the possession of firearms, etc.
A few states actually have statutory language protecting “lawful off-duty conduct” where an employer must demonstrate some nexus between the employee’s engagement in an activity and the employer’s business before allowing the employer to take adverse action against the employee for engaging in the conduct.
In Colorado, for example, it is illegal for an employer to terminate an employee because that employee engaged in any lawful activity off the employer’s premises during nonworking hours unless the restriction 1) relates to a bona fide occupational requirement or is reasonably and rationally related to the employee’s employment activities and responsibilities; or 2) is necessary to avoid, or avoid the appearance of, a conflict of interest with any of the employee’s responsibilities to the employer.
In Montana, an employer is prohibited from refusing to hire a job applicant or disciplining or discharging an employee for using “lawful consumable products” (such as tobacco or alcohol) if the products are used off the employer’s premises outside of work hours, with certain exceptions for a bona fide occupational requirement or a conflict of interest, similar to Colorado’s law.
Finally, what about employer policies? Many employers can and do expect that employees will follow their employment polices at all times, regardless of whether the employee is working or at work. Employers learned long ago that it’s wise to establish written policies that set forth the standards of conduct expected of their employees. These employers also know that the policies must be monitored and enforced in order to remain effective tools for encouraging or prohibiting certain behavior. But can you rely on your policies to discipline or terminate employees for engaging in legal conduct that occurred off-duty, especially if the conduct also occurred off-premises, and did not negatively impact the employee’s performance of his or her duties or your business?
Well, an employer considering ending the employment relationship based on off-duty conduct first must evaluate whether the off-duty conduct might be protected by any applicable federal or state law. And, as mentioned, in a few states, all lawful off-duty conduct is protected. In many more states however, lawful off-duty conduct and certainly unlawful off-duty conduct might result in an employer choosing to end the employment relationship for any number of reasons.
Why would an employer react so drastically to off-duty conduct? Most employers perceive that the actions or inactions of an employee known by others to work at Company X reflect on the reputation of Company X. Those employers are probably right. Here are some examples of off-duty conduct that may or may not be grounds for discipline or termination, depending on the state and the circumstances.
- More and more states are allowing marijuana use under some circumstances.
- While most employers may prefer that employees not bring firearms onto company property, some states have laws that protect an employee’s right to do so.
- Connecticut, Washington D.C., Indiana, Kentucky, Louisiana, Maine, Mississippi, Missouri, New Hampshire, New Mexico, South Carolina, South Dakota, Tennessee, Virginia, West Virginia and Wyoming, among others, all have statutes protecting the rights of employees to smoke away from company premises.
As the above examples illustrate, employers must carefully analyze each situation before refusing to hire a candidate or disciplining or terminating an employee for having engaged in lawful off-duty conduct, even if such conduct violates the employer’s established policy. Even with all of the possible restrictions in some states, employers may have more leeway than they think to consider off-duty conduct when making employment decisions. A wise employer seeks wise counsel to help the employer avoid possible legal pitfalls while exercising the full extent of the employer’s rights.
Jennifer Sandberg is a partner with Fisher & Phillips, a law firm devoted solely to the representation of employers in labor and employment law matters. She devotes a majority of her practice to compliance counseling and policy development. Contact: jbsandberg@laborlawyers.com