This is America- we have a right to privacy! It’s none of my boss’s business what I do on my free time, right?
Yes and No!
Businesses care about an employees’ private behavior for a variety of reasons. The company may have a code of ethics, setting standards of behavior for their workers that coincide with the business’s principles and values. They may have a crime-free workplace policy, permitting them to discipline or terminate employees who break the law. And finally, business success relies on a good reputation, and companies have a vested interest when an employee’s conduct has the potential of damaging the company’s reputation.
There are several categories of conduct that are commonly monitored by employers. One example is the use of illegal drugs, including both recreational and medical marijuana. As it stands today, employers may still maintain a drug-free workplace policy based on federal law. Pre-employment drug testing, random drug testing and post-incident testing may reveal an employee’s use of drugs off-premises. An employer with a drug-free workplace policy may discipline or terminate an employee who violates this policy.
Businesses are often in a predicament when an employee is arrested. Should the employee be terminated immediately? Remember- we’re all still innocent until proven guilty. However, if your employee is in jail for months awaiting trial, what should you do? Every situation is unique, but you should take into consideration the nature of the crime, potential harm to the business, length of time until charges are resolved or conviction attained, and relationship of the crime to the business. Often businesses place the employee on paid or unpaid leave until the situation resolves. Even when an employee is found innocent (i.e. Casey Anthony, George Zimmerman), the very public and appalling nature of the accusation may be enough justification to terminate the employee.
As healthcare costs elevate, more companies are executing behavioral policies which impact employee health. The most common one is a policy to not employ tobacco users. While some states prohibit this, in Washington, cigarette smokers are not a protected class and may be discriminated against.
Some businesses forbid employees from moonlighting without prior permission from the company (i.e. a teacher employed as an exotic dancer). Companies just need to bear in mind that part-time jobs are on the rise, and in today’s economy, more workers need a second income in order to survive.
Many states have laws regulating or prohibiting employers’ rights to regulate employees’ private behavior. They range from making it illegal to consider employees’ lawful activity, protecting smokers’ rights, protecting employees’ rights to engage in political activities, and protecting employees’ rights to carry a concealed weapon. Surprisingly, Washington state law is silent on all of these issues. However, that doesn’t give employers carte blanche to regulate their employees. Other organizations, such as the National Labors Relations Board (NLRB), will weigh in.
The NLRB’s interest in this subject pertains to employees’ rights to protected activity. For example, companies may attempt to prevent employees from using social media to publicly disparage the business or their supervisors. If this public discussion involves other co-workers, for example, then the NLRB sees it as the same as employees discussing their working conditions or terms of employment over the water cooler, which is a protected activity. Employees are also protected against retaliation. They have a protected right to report such things as discrimination or sexual harassment, make a workers comp claim, be a whistleblower about their employer’s improper or illegal activities, and request accommodation for a disability.
Today’s headlines contain many stories that highlight the dilemma company’s face over employees’ private behavior. Donald Sterling may lose his basketball team because of comments he made IN PRIVATE! Your business may not have such a high public profile, but all it takes is one misstep or scandal to put you on the newspaper’s front page.
While it may be tempting to use social media to see what your employees are up to outside of work, remember that old saying “Be careful what you wish for.” Once you have the information, what will you do with it? If you do decide to take some action, weigh your options carefully. You must have a strong business case to move forward, and at the same time ensure that you are not violating any laws.
Delicately craft your policies in your employee handbook, have your attorney review them, and ensure that your employees know what conduct is acceptable to you, both at work and off-duty.
