Q. Two employees got into a fight while on their lunch break. They were playing soccer in an open lot off premises and wearing their company uniforms. The vice president reacted by banning employees from playing any sports during their lunch break—on the premises or off. Our employees are not paid for lunch breaks and they are not part of a union. Can the VP dictate what employees can do on unpaid time? — Betts, Illinois
A. As with so many legal questions, the answer is both “Yes,” and “No.” No, in many jurisdictions (not including Illinois) an employer can’t control what an employee does outside of work hours, as long as the employee is engaged in lawful activity. Illinois doesn’t have such a law, although it does prohibit an employer from taking adverse employment action on the basis of an individual’s use of a lawful product (think tobacco or alcohol) outside of work.
Moreover, in some circumstances, an employer’s instructions that employees can’t engage in certain activities while on break have the effect of not actually relieving the employee from duty, so that the “break” time may actually be counted toward hours worked (and possibly overtime). For example, if you dictate that employees stay on the premises during breaks, you may have to compensate them as a result.
On the other hand, employers may be able to make some work rules restricting what employees do outside of work. Employers are particularly likely to adopt rules of this sort if employees are wearing the employer’s uniform. So, your employer might adopt a rule prohibiting employees from playing sports while in uniform. Moreover, an employer might be concerned about liability if anyone is hurt while playing sports, particularly if the games are played at the employer’s work site.
Perhaps a compromise may be reached. Ask your employer to explain the concerns that led to the adoption of the new rule, and whether the rule might be eased.
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