Regulating Employee Behavior Off-The-Clock

You’re a respiratory therapist on an oncology unit and a long-time smoker. In fact, you’re often observed taking smoke breaks by fellow employees and sometimes patients in close proximity to the hospital grounds.

You’re a department manager at a highly regarded health care system and an exotic dancer when you’re not “on the clock,” although the fact that you’re in a salaried position makes determining what’s “off the clock” somewhat challenging.

You’re a sleep technologist at a sleep center in a small community and you also write a blog on “stupid medical errors” in your spare time.

Employees should be aware of employers policies that regulate off-duty behavior, like blogging about stupid medical errors.

Could any of these activities create problems for these individuals or their employers? Would the problems be significant enough that their jobs might actually be in jeopardy? While the answers are not always clear-cut, contrary to what seems to be common opinion, employees can be terminated for off-duty behaviors that create issues for their employers – either from a legal or image standpoint, say legal experts.

Lifestyle Choices

One area of “off the job” regulation relates to the ability of employers to regulate off-duty lifestyle choices of employees such as eating healthy foods, not smoking, and exercising. In healthcare settings, employers are concerned about the example employees set and their image if their own employees don’t practice healthy habits.

But as healthcare costs continue to rise, employers also are concerned about controlling those expenses. Consequently, “many employers are starting to consider policies that regulate these types of behaviors, ” said Lori Rassas, an employment attorney in the New York City area and author of Employment Law: A Guide to Hiring, Managing and Firing for Employers and Employees.

This is not the only area where off duty behavior becomes an important issue. Employees’ social media use is another area of common concern to employers, said Bill Nolan, an attorney based in Columbus, OH. “If off-work conduct is reasonably viewed as damaging to the employer, the employer very often can lawfully take action,” said Nolan. But, he adds, the “lines are almost inherently gray, so employers do need to be careful.”

Don’t Tread on Me

Yes, employers have a right to protect their interests. But, in doing so, they must not infringe on the interests of their employees. It can be a delicate balance and employers are advised to exercise caution when it comes to attempting to regulate – or respond to – what employees are doing while off the clock.

“An employer steps on treacherous grounds when it tries to interfere with an employee’s right of self-expression or association outside of work hours,” said Jane Lewis Volk, an employment attorney in Pittsburgh, who has been counseling healthcare institutions and other organizations on employment law issues for 20 years.

Volk noted that 28 states and Washington, DC protect employees from adverse employment actions based on their off-duty activities. All but four states limit the protection to the use of tobacco products or the use of lawful products. So, Volk admits: “There could be some leeway for employers to attempt to control the outside activities of employees.” But not many do because for the most part it can be counterproductive.

Rassas agreed. “It is true that, in some cases, employers do have the right to regulate the off-duty conduct of their employees,” she says. “But since these regulations are often viewed as intrusive, legislatures and courts often review the reason for the regulation to determine whether the employer has a legitimate business interest or public policy consideration that justifies the intrusion.”

Employees may challenge these decisions and when they do, “the decision makers usually apply a balancing test that weighs the rights of the employee to engage in particular conduct outside work hours against the rights of the employer to manage its operations, control its workforce and protect its business interests, said Rassas.
In making a determination, courts would consider the nature of the conduct, the nature of the employer’s business and the harm to the employer’s reputation that would result from the conduct.

Making Sound Choices

The first consideration for employers, says Volk, is what would be a “legitimate” concern. Image? Safety? Trying to curtail sick days?

“Certainly controlling the political or religious predilections of employees should always be off limits,” said Volk. “To my mind, unless something the employee is doing after hours is illegal or against a contractual agreement with the company, it’s simply not the employer’s concern.”

The issue of “contractual agreement” is one organizations can use to help ensure employees will not be in a position to cause either embarrassment or actual damage to their reputations. But even issues of policy should be carefully considered in terms of the potential impact on employee morale. “Employers get into morale problems whenever they establish a policy that makes employees lie – such as a no fraternization policy,” said Volk. “Employees will sooner or later begin to lie rather than not participate in activities outside of work hours that the employer tries to ban or monitor.”

What Employees Need to Know

Employees should make sure they are aware of any policies in place that may impact their off-duty behaviors. A common policy that has become more prevalent in a poor economy is a policy regarding an employee’s ability to “moonlight” or work at a different job. Employees in senior-level or sensitive positions that may have been asked to sign an employment agreement must also make sure they clearly understand any restrictions that might be in such an agreement.

Finally, employees should exercise good judgment and common sense in their actions – both on and off the job.

Lin Grensing-Pophal is a frequent contributor to ADVANCE.