After hours: How to regulate employees’ off-duty behavior

Employers can regulate what employees do away from work—but only within narrow limits. There are often good reasons to. Some off-duty acts reflect poorly on employers. Unhealthy behavior can raise insurance costs. And employee moonlighting may create conflicts of interest.

Conduct unbecoming

You can implement a policy that prohibits off-duty conduct that is unbecoming, immoral or illegal.

Your policy should spell out any restrictions on compromising outside business or employment. Enforce it by thoroughly investigating all alleged violations. Be sure to give employees the chance to defend their actions. Employers may not fire or discipline an employee on mere suspicion of unbecoming, immoral or illegal behavior.

Controlling unhealthy habits

To control health care costs, many employers try to regulate employees’ off-duty behavior that might pose health risks. Some have instituted bans on hiring smokers, even those who only smoke while off duty. Others charge overweight individuals more for health insurance.

Do employers have free rein to monitor and make decisions based on that kind of off-duty conduct? Not if they operate in one of several states with laws prohibiting lifestyle discrimination. For example, 30 states ban discrimination based on off-duty use of tobacco.

Employers in other states have more flexibility, particularly when there’s a connection between employees’ personal habits and their workplace effectiveness or if they have reason to suspect violations of workplace rules.

But beware: Employees treated differently because of their lifestyles might claim disability discrimination. A smoker could claim he has a nicotine addiction, and that the addiction constitutes a disability. A morbidly obese employee could claim she’s disabled because she’s substantially impaired in walking.

Advice: Instead of screening or firing your way to a healthier work force, try establishing a wellness program.

Moonlighting policies

More employees are working second jobs to make ends meet. But moonlighting often raises conflicts of interest that can undermine your organization. You can prohibit employees from working other jobs. However, you should have a good, business-related reason for doing so.
The key: Set a clear policy that outlines what you consider acceptable outside employment. Apply your moonlighting rules uniformly, or you could risk a discrimination lawsuit.

Specify that employees may not work another job while they’re out on FMLA leave.

Self-audit: Do your policies cross the line?