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Minding Employee Behavior Off the Clock and Off the Premises

Off-duty misconduct may be handled in one policy or multiple ones

August 10, 2016 | Allen Smith, J.D.

A group of friends sitting at a table in a bar.

Prohibited off-duty conduct includes harassment.

An employee who is off duty isn't necessarily beyond an employer's reach. But how should an employer address off-duty misconduct—in broad company policies, such as anti-harassment and discipline policies, or in stand-alone off-duty company policies?

"What I would prefer to see is off-duty conduct included in the various policies for which it is most relevant," said Anthony Byergo, an attorney with Ogletree Deakins in Seattle and Kansas City, Mo.

"So, the anti-harassment policy should clearly mention that it covers behavior both on- and off-duty, and on and off the work premises," he said. "Likewise, the discipline policy should include mention [of] conduct on- or off-duty that harms the business interest or reputation of the company, including outside employment that creates a conflict of interest or criminal activity that would disqualify the employee from employment."

When a business prefers to adopt a separate policy addressing off-duty conduct, the employer should be careful to craft it narrowly, said Jason Habinsky, an attorney with Haynes and Boone in New York City. "If the policy is too broad, employers risk running afoul of state laws protecting employee privacy and federal law prohibiting employees from interfering with employees' protected concerted activities."

What Conduct Should You Address?

Lorie Birk is vice president of member services in Scottsdale, Ariz., for the Mountain States Employers Council and a lawyer licensed to practice in Arizona, California and Texas. She said the off-duty conduct that might need to be addressed in workplace policies may include:

Sexual harassment.
Arrests.
Off-the-clock work while on medical leave or off duty.
Marijuana usage.

Anti-Harassment Policy

An anti-harassment policy can be broad enough to cover when co-workers are socializing and one employee starts to harass another based on gender, race, national origin or other prohibited factor, according to Jay Hux, an attorney with Fisher Phillips in Chicago.

Even off premises and off hours, an employer will want to investigate if a boss sexually harasses a subordinate, for example.

Employers should clarify that harassment will not be tolerated while traveling for business, Habinsky said. "Employers should also communicate with supervisors that they are expected to be professional at all times around their subordinates and that they will face consequences for violating the company's anti-harassment policies."

Harassment of co-workers also should not be tolerated on social media, Birk noted.

Arrests

As for arrests, Kristin Michaels, an attorney with McDermott Will & Emery in Chicago, noted that state law governs whether an employer can take an employment action based on an arrest and that the laws vary widely from state to state. For example, in Illinois and California, employers cannot use an arrest as the basis for an adverse employment action.

But, in some states, an employer might lawfully suspend the employee pending resolution of the arrest. Depending on the jurisdiction, the leave might have to be with pay so it's not an adverse action, Hux noted.

Title VII of the Civil Rights Act also might be violated if arrest records are unlawfully used in employment decisions. The Equal Employment Opportunity Commission in 2012 released guidance that an arrest record alone may not be used in an employment decision. However, the agency also has said that placement on unpaid leave or termination might be justified given the conduct underlying the arrest, such as if an assistant principal is arrested for touching students inappropriately.

Out on Leave but Still Working

One common challenge for employers is overly conscientious employees who are on medical leave but work off the clock.

Sometimes managers are to blame, calling the worker who is on leave to ask work-related questions or even requiring the employee to come in. "That's a complete violation of leave rights," Birk said.

Employees on leave may want to work, but if the doctor says, "no," that has to be honored. Cut off access to office systems during leave if employees still try to work, Birk recommended.

HR should remind managers who pester employees on leave that the managers can be held personally liable for a violation of the Family and Medical Leave Act, she said.

Checking E-mails

Sometimes nonexempt employees check e-mails remotely while they are off duty, which violates the Fair Labor Standards Act if they aren't being paid for work time. If an employer allows employees to check their e-mails at home, the employees have to be trained to update their time sheets to reflect this work, Birk reminded.

Managers need to be trained as well. If a supervisor sends an employee an e-mail off hours and requires a response then, he can't later claim he did not know the employee worked unpaid off the clock.

If managers insist on sending e-mails during off hours and nonexempt employees are not supposed to reply until business hours, employers should make that clear in wage and hour policies and training.

Marijuana Usage

The increasing lawful use of marijuana, whether medical or recreational, poses a growing challenge for employers. While employers can have zero tolerance policies for marijuana usage at work, some states have muddied the waters with nondiscrimination laws, such as one in Arizona. The state prohibits employers from discriminating against medical marijuana cardholders or those testing positive unless federal funding or licensing would be lost for failing to act, Birk said. Marijuana stays in a person's body so long that someone can test positive after the person no longer is impaired, she noted.

Some employers no longer test for marijuana. Instead, they pay more attention to outward signs of whether someone is impaired at work. If someone smokes pot at lunch and is impaired at work, he or she can be fired for that, Birk said.

Some employees think that if they have a medical marijuana card, they can't be touched. "No; if they're impaired [on the job], they can be terminated," she said.

Rights Off Premises

While employers should prohibit unlawful off-duty activity, such as harassment and off-the-clock work, they shouldn't forget that employees have certain rights off premises.

"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," Michaels noted. "State statutes vary in terms of the type of conduct protected, but include tobacco use, lawful use of consumable goods such as alcohol, online activities such as blogging or participation on Internet message boards, political activities, union membership, and legal recreational activities."