Can you regulate an employee's off-duty behavior?

Am I allowed to monitor my employees’ off-duty behavior and fire an employee because of it?

Chances are that most managers have wondered about some form of this question.

Employee BehaviorThe behaviors might include drinking, smoking, working for a political party or candidate, using a competitor’s product or services, displaying certain bumper stickers, engaging in dangerous sports, cross-dressing, having extramarital affairs or cohabitation.

The answer is complex. In general, unless there are state laws tying your hands, there are no federal laws that prohibit you from firing employees for their off-duty behavior. Of course, you cannot discriminate on the basis of a protected category, for example, age, race, sex or disability.

You can fire an employee for any reason – with a few exceptions (see below). This is an upshot of the “employment at will” doctrine, which states that either the employer or the employee may end the relationship at any time, without having to prove cause.

That said, there are exceptions to “at-will,” and there are other reasons you might not want to fire an employee for off-duty activities.

First, a growing number of states are enacting so-called “lifestyle statutes” that prohibit firing employees for engaging in certain legal behaviors or using legal consumable products on their own time.

Smoking is the most widely protected of these lifestyle behaviors. Some states go as far as to prohibit discrimination against employees for any lawful activities on their own time, even if employers do not approve of those activities.

However, there are exceptions even to lifestyle statutes. For example, while drinking alcohol may be protected, if it affects job performance, it is not. This is especially the case in safety-sensitive jobs, such as transportation and operation of heavy equipment.

Federal laws do protect certain off-duty behaviors. These include whistle-blowing, reporting potential safety violations, union organizing and filing a workers’ compensation claim.

Most collective bargaining agreements specify that union employees may not be terminated without “just cause” and provide for a multi-step grievance procedure, plus arbitration.

Other considerations that can limit an employer’s ability to terminate an employee for their off-duty behavior include an employee handbook or written employment contract that states that employees will not be terminated without cause.

Finally, there are some less tangible things to consider. Even if you are not prohibited from firing employees for their off-duty behavior, how will it affect the morale among your other employees? How will your image in the community be affected if it makes it into the media?

There is a general assumption of individual freedom in our society. The extension of that into the workplace is the belief that employees should not lose their jobs as a result of lifestyle choices as long as those choices do not affect the business or workplace.

If you are thinking about terminating an employee for off-duty behaviors, it might be prudent to consider whether that behavior affects the employee’s job performance, the workplace or the business. If not, you may want to reconsider such an action.

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