Where Is the Line Between Acceptable and Unacceptable Off-Duty Conduct?

This morning you found out that your top salesman spent the weekend in jail for disorderly conduct.  Or your office manager is smoking marijuana on her lunch breaks.  Or your marketing manager is dating the CEO of your biggest competitor.  Can you speak to your employees about these issues or even terminate them?  Where does their right to privacy end and your right to maintain a productive workplace and a positive public reputation begin?

Employers understandably want an efficient workplace where everyone gets along and does their job. Any attempt to manage or control employees’ off-duty activities is sometimes met with a complaint of “lifestyle discrimination.”

A number of states have laws against disciplining or taking any negative action against an employee for taking part in political rallies, for example, or doing other lawful activities during their time off even when the employer disagrees with their position.  Even certain types of illegal behavior, such as domestic violence or selling drugs, may be abhorrent to you as an employer, but it may not be job-related as compared to something like theft.  Each case needs to be considered individually.

So where is the line?  Before taking any action consider the following steps:

  1. What effect does this conduct have on the person’s job performance? If a person was in jail over the weekend but was able to report to work on Monday morning, while your opinion of him may change, if he is there performing up to par, then there may be little actual effect on his performance.  Keep in mind that under most conditions you can’t take negative actions against someone for an arrest only.
  2. Does this behavior go against company policy? Even though your office manager is smoking marijuana during her lunch hour, which is her off-duty time, if she comes back to work under the influence, it may affect her work performance and if so, it may give you the right to require a drug test if you have a policy that allows for testing when there is “reasonable suspicion.”  If it affects her performance, you should also write her up.
  3. You can’t tell people who they can or cannot date. But you can protect your trade secrets with a Non-Disclosure Agreement written by an attorney who understands your business, and you can require that it be signed by everyone when they are hired. You can certainly remind your marketing manager that they signed that document, or you can have everyone sign it once you have one written if you don’t have one in place now.

The bottom line:  If a person’s behavior puts your company in either legal or financial risk, then you may have more latitude to regulate it.  Also, if you can show that the behavior actually affects the person’s performance, then you may also be able to regulate it or discipline or terminate. Again, each case should be considered separately and make sure your documentation is clear and factual.