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Off-Duty Conduct

There is no single law protecting the rights of employees while they are off work. Instead, other areas of the law, such as discrimination, drug testing, and harassment laws, protect an employee’s off-duty conduct. Therefore, each different off-duty conduct issue must be looked at carefully. This page provides answers to many common questions about off-duty conduct, but for issues with off-duty conduct it is always advisable to have a local attorney look at your case. Read below to learn more about your rights with respect to off-duty conduct.

The answer to this is a favorite of lawyers: “It depends.” It depends on the activity involved, whether it has any connection to the job, and on whether it is protected by any applicable state law. Generally, an employer may fire you at-will unless there’s a relevant state law or you are a union or governmental employee owed special protection from firing without reason.

At-will employment is when an employer – and employee – may terminate employment at any time for nearly any reason and without notice. If the reason is not illegal, it is valid. A reason could be illegal if, for example, it is discriminatory or is prohibited by state law. See workplacefairness.org for more information on at will employment.

Some states prohibit discrimination against employees for participating in legal activities outside of work hours. As of 2023, this includes at least California, Colorado, Louisiana, New York, and North Dakota. 

In these states, any conduct that does not conflict with the employer’s business should be allowed without risk of termination. This is not always straightforward, however, as courts debate on a case-by-case basis whether a specific activity is protected. Blogging is one example that courts vary with. 

While employers can ban smoking at work, whether they can enforce a no-smoking policy for smoking done outside of the workplace and off the clock depends on state laws. Many companies enact some form of “no smoking” policy to reduce their health care costs, but a “no smoker” policy may go too far in some states. Contact an employment attorney in your state if you have questions on your state’s law. See the Workplace Fairness Attorney Directory for a listing of employment attorneys.

Most of the companies implementing anti-smoking policies are giving their employees time to quit smoking, and are supporting their efforts by sponsoring programs and paying for aids to quit smoking, such as medication, nicotine gum, and patches. If you value your job and truly want to quit smoking, you may want to take advantage of these additional incentives, or you may want to look for a new job without such restrictive policies.

For more information on your rights as a smoker visit our page on Smoking and the Workplace.

Generally, an employer can fire you for having a personal website or blog that it deems inappropriate, with very limited exceptions. Even if you have a non-work related website that you don’t access from your office, employers can fire you if they feel the content on your personal site or blog is offensive to them or to potential clients, or reflects badly on the company.

For more information see the Workplace Fairness page dedicated to Social Networking and Computer Privacy. Additional information can also be found at the Electronic Frontier Foundation’s Blogger’s FAQ on Labor Law.

In some states, if you write about political matters, you may have protection under laws that make it illegal to discriminate against you for engaging in political activity. A handful of states have laws restricting an employer’s ability to fire you for “lawful conduct outside of work,” which might offer some protection. For more information on these laws, see our site’s page on political activity retaliation.

If you’re whistleblowing–reporting the employer’s unlawful conduct–you may have some protection if you’ve reported it to a government agency first. And if you use your blog to communicate with your coworkers for the purpose of forming a union or otherwise banding together to oppose bad working conditions, you may be protected by labor laws which allow you to engage in concerted activity for “mutual aid and protection.” See our site’s retaliation for union activity page for more information.

The protections listed above are fairly limited, so if you are concerned that your employer will retaliate against you for what you’re saying, or you would just prefer to keep it private, the safest bet is to blog anonymously or to restrict access to your blog.

Moonlighting” is a term that refers to working a second job. This issue can sometimes fall into a gray area, but the answer is probably yes, your employer can restrict you from moonlighting, whether through its personnel policy or by requiring that you sign a non-compete agreement that limits the type of work you can do for anyone other than your current employer.

Most states do not have laws protecting your right to work for another employer, and in the absence of any legal protection, you are most likely employed at will, meaning you can be terminated at any time for any reason. Even if you were not employed at will, violating your employer’s policy would be sufficient “just cause” grounds for termination or discipline. (However, if you live in a state with a law restricting an employer’s ability to fire you for “lawful conduct outside of work,” that law might offer some protection. For more information on these laws, see our site’s page on political activity retaliation.)

If it is essential for you to moonlight for financial reasons, or you are gaining experience which might help you advance within your current company, then you may wish to talk to your supervisor or someone in your company’s human resources department to find out the reason behind the company’s policy, and to see whether your employer is willing to make an exception to the policy. If they understand that your primary loyalty is to your full-time job, and respect the reasoning behind your need to moonlight, then you will have resolved this issue in a way that doesn’t risk your full-time employment. If, however, they say no, then you will have to make a decision about whether you can continue in your current employment, which is always easier to make before you are terminated for violating company policy.

If your company does not have a moonlighting policy, then it may not be a problem for you to have a second job, but to be safe, you might want to consult a supervisor or your company’s HR department. Also, you should never conduct any business related to your second job while working for the first employer, which includes phone calls, e-mails, and use of your primary employer’s supplies or business contacts.

Some companies concerned about sexual harassment have instituted strict “anti-nepotism” or dating policies which seek to prevent workers from dating certain or all coworkers. While generally these policies are designed to prevent you from dating someone in your chain-of-command, be sure that you do not violate your company’s policy, which may be more strict than the most common policies. Some companies now ask that you notify the company before dating a coworker, and may require that you sign a “relationship contract,” indicating that the relationship is voluntary and consensual.

Workplace-relationship policies can be nonexistent, be limited to preventing supervisor-subordinate relationships, or broadly prohibit romantic relationships between any employees whatsoever.

An increasing number of companies are adding these policies, and most of these policies have thus far survived legal challenges. If your company has such a policy, it is probably best to comply with the policy and disclose the relationship, especially if your relationship has reached a point where other coworkers are likely to find out about it. Voluntarily disclosing the information up front will make it easier for you and your company to address any potential problems that could result, such as issues related to one employee’s authority over another, promotion/advancement which could lead to supervision issues, and what happens if you break up.

You may think that who you socialize with when off the job is none of your boss’ business. Whether an employer’s anti-fraternization policy is legal depends on how extreme it is. 

For example, a federal court struck down a policy that said employees could not “fraternize on or off duty, date or become overly friendly with the client’s employees or with co-employees” (Guardsmark LLC v. NLRB, D.C. Cir. 2007) The court interpreted the policy as prohibiting even non-intimate relationships, holding it overbroadly attempted to restrict legal activity. The court’s decision came after the National Labor Relations Act had upheld the same policy. 

Probably. In most states, an employer may fire an employee for testing positive for marijuana on a drug test – even if they have a valid medical card. Unless a state has a law that unambiguously protects an employee’s use of medical marijuana, it is legal to fire someone for marijuana use. Arizona and Delaware each protect employees who use medical marijuana (Ariz. RSA § 36-2801-19; Del. Code § 16 4901A-4928a). 

Visit Workplace Fairness’ page on marijuana and drug testing, or visit Nolo to see how state laws for medical marijuana use compare.

Yes. Federal law, specifically Title VII of the Civil Rights Act, prohibits employers from firing or otherwise discriminating against individuals because of their sexual orientation. Employers also cannot discriminate against a person for being transgender. The Supreme Court recently solidified these rules in 2020 in Bostock v. Clayton County, GA.  

Visit Workplace Fairness’ page on sexual orientation discrimination for more information, such as the legal differences between sexual orientation and gender identity.

While there are laws protecting you against harassment, whether a company will take action against an employee for off-duty harassment depends on the company policy. For example, if the harassment is creating a hostile work environment, many companies will discipline the offender.

 If you feel you are being harassed, you should consider reporting this to your employer, to HR, or even to the police.

For more information on harassment visit our Harassment and Other Workplace Problems section and read about the harassment most closely related to what you are experiencing.

Federal law is silent on the issue of marital discrimination. While most states have laws that protect against discrimination based on marital status (for example refusing to hire a married person for fear they will request extra time off), these laws are often silent on the issue of employer decisions that prohibit married couples from supervising one another. As a result, many companies have an anti-nepotism policy. However, while anti-nepotism policies may be legal, sex discrimination, sexual orientation discrimination, and violations of employee privacy are not, and that may afford you some protection. For more information visit our Family Responsibilities Discrimination pages.

The post Off-Duty Conduct appeared first on Workplace Fairness.

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