Say you find out that your sales manager is dating the marketing director of your biggest competitor. Or that your cashier has a bottle-of-scotch-a-day drinking habit after work. Can you fire these workers, or at least ask them to change their behavior?
In recent years, employers' attempts to regulate workers' activities during their off-duty hours has become a hot issue. The issue pits employers, who want highly productive workers and low insurance costs, against employees, who claim any restrictions amount to "lifestyle discrimination."
The issue sparked up again recently thanks to a University of California, Berkeley, study that says employees who consume 10 or more alcoholic drinks in a week are more likely to file workers' comp claims.
28 states handcuff employers
Employers often have legitimate reasons for punishing or firing workers for illegal off-duty behavior, especially if it's related to their jobs, such as a theft conviction. But disciplining an employee for participating in lawful conduct outside work is a slippery slope.
Federal law is silent on the issue, but more than half the states have some sort of law banning companies from taking action against workers because of their off-duty conduct.
Specifically, 19 states and the District of Columbia prohibit employers from discriminating against workers because they smoke. Another nine states have broader laws that ban discrimination based on a person's use of "lawful products" or participation in "lawful activities." New York and Colorado have two of the most onerous laws for employers.
Establish link to job performance
Here's the litmus test: If a worker's off-duty activity puts your company in legal or financial jeopardy, the courts will be more likely to let you regulate it. You'll be on safer ground if you can prove a direct link between the conduct and the worker's job performance. Be able to clarify a legitimate business reason that's backed by company policy.
For example, a Minnesota appeals court upheld the firing of a police chief who often left the station to have an extramarital affair. He later claimed his actions were private, but failing to notify staff of his whereabouts went against police department policy.
5 ways to avoid trouble
1. Focus on the effects on job performance, rather than the circumstances of the off-duty conduct, when disciplining employees.
2. Clarify a legitimate business reason that's communicated to em-ployees through company policies.
3. Avoid blanket anti-moonlighting rules or restrictions against socializing with competitors. If you want to protect your company's trade secrets, have all employees sign nondisclosure agreements.
4. Check your state's rules and get legal advice before firing or disciplining a worker for his off-duty activity.
5. Be evenhanded. Apply the same level of scrutiny across the board and be consistent with your past discipline. You can't suspend one employee for off-work behavior and then ignore another under similar circumstances.
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