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Off the Job but Still on the Hook: An Employer's Liability for Employees Off-Duty Conduct

You believe you have an air-tight employee handbook that describes all the possible employee violations and consequences at work, but what about off-duty conduct that happens outside of work hours and not on work premises? What are your rights as an employer to discipline or even terminate an employee?

While it’s understandable for employers to be concerned about workers’ off-duty activities that may affect job performance or the company’s image, employers must ensure that their policies don’t violate federal, state or local laws that protect employees’ lawful conduct outside of work.

Off-duty conduct may be protected by state anti-discrimination laws which means that some states restrict an employer’s ability to control off-duty conduct and apply discipline even when it impacts the company’s reputation or has potential to harm the organization in some way. Because there is so much variance from state to state, employers should check state laws before implementing a policy on off-duty conduct.

At least 29 states and the District of Columbia have enacted statutes protecting employees from discrimination or retaliation based on an employee's participation in off-duty activities. For example, in Colorado, it is illegal for an employer to terminate an employee because that employee engaged in any lawful activity off 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 prevent the appearance of a conflict of interest with any of the employee’s responsibilities to the employer. In addition, some states, including California, have laws prohibiting employers from taking any job-related action based on a worker's lawful conduct off the job.

Certain off-duty employee conduct, such as social media posts, may also be protected under federal laws. As many employers have learned the hard way, the National Labor Relations Board (NLRB) may restrict an employer’s right to terminate an employee for posting disparaging comments on social media. You can also violate NLRB rules by maintaining overbroad social media policies if they prevent employees from discussing their wages or other conditions of employment.

Companies should avoid creating a broad policy that addresses all off-duty conduct because it can run the risk of violating state laws that protect employee privacy and federal law prohibiting employees from interfering with protected concerted activities. It is better to address the off-duty conduct in specific policies with consequences if employee is found to violate the policies.

For example, if the company has an anti-harassment policy, it should be clear that it covers behavior both on and off duty and on and off work premises, including traveling for business and social media. Harassment and sexual harassment are against federal law so this is definitely a policy that should address off-duty conduct.

In addition to anti-harassment (in accordance with applicable state law), off-duty conduct can be addressed in specific workplace policies such as:

  • Criminal convictions (not arrests)

  • FMLA (violation of the law)

  • Illegal drug usage or possession

  • Conduct that harms the business interest or reputation of the company

  • Vehicle violations (if driving a car is part of the job)

  • Social media

  • Moonlighting (if doing so interferes with business operations or is with a company that is a competitor)

In conclusion, it is advised that you address off-duty conduct in your employee handbook and HR policies, but it should be included in specific policies where demonstrated violation is clearly illegal and/or would negatively impact the company and/or employees. Be sure to research applicable state laws where your business is located and review with your legal counsel before publishing.

The Bradley Partnerships can help you develop policies and create an employee handbook that is legally sound and up to date. To contact us, please visit our website at or email us at .

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