What Are Off-Duty Conduct Laws?
For starters, most people have hobbies and interests outside of the workplace. However, many employees and employers are not aware of laws that prohibit discrimination against employees based on lawful off-duty conduct.
Off-duty conduct laws prohibit employers from discriminating against employees because the employees participate in legal activities during non-work hours and away from the workplace. These laws also prevent employers from refusing to hire applicants who participate in legal off-duty activities.
Off-duty conduct laws are applicable to alcohol-related activities, e.g., drinking alcohol during non-work hours and away from the workplace. Nearly all off-duty conduct laws apply to alcohol-related activities, with the exception of Colorado, the District of Columbia, Hawaii, Montana, New Jersey , and South Carolina. Ten states specifically address marijuana-related activities. Eight of these states also address alcohol-related activities.
In addition to prohibiting employers from discriminating against employees (1) because the employee drinks alcohol during non-work hours and away from the workplace, or (2) because the employee participates in the private use of marijuana during non-work hours and away from the workplace, off-duty conduct laws prohibit employers from taking adverse employment action against employees and job applicants because the employees and job applicants: (1) are legal age and engaged in the commencement, continuation, or cessation of an employment relationship with a private employer that is prohibited by state law; (2) engage in political activity; (3) seek legal employment; (4) attend lawful meetings; (5) refrain from attending meetings; (6) sign or refrain from signing a petition; (7) join or refrain from joining a union; and (8) participate in any lawful activity off of the employer’s premises.
Federal vs. State Laws
As mentioned above, there are several prominent federal laws that address off-duty conduct. However, due to federalism, these are not the only or even the most common laws regular workers face. The complexities that can arise from multiple layers of laws and regulations are a frequent source of confusion for employers and employees alike. It is important for both employers and employees to understand the specifics of the laws that apply to them. The major, most relevant federal laws regarding off-duty conduct are the following: The enforcement of these laws depends on a number of factors. For example, while the NLRB is an independent agency with several regional and district offices, it is not easy to get in touch with someone in the organization. This can lead to significant delays in resolving a case. Fortunately, unionized employees have a stronger legal standing than non-unionized employees under federal law and have recourse if they are unfairly fired or discriminated against by an employer. Employee rights laws vary considerably from state to state. As a result, employees (and employers) need to be well aware not only of federal laws but the specific statutes that apply in each jurisdiction. While some states require all employers to provide certain rights to employees, others have little or no laws that allow workers to take time off of work. Depending on the jurisdiction, employees may have a considerable amount of time to partake in off-duty activities or none at all. Typically, states with strong employee rights laws aim to protect worker rights. These typically apply to all types of workers (public and private) across all sectors of the economy. Other kinds of laws are more sectoral, focusing more on specific circumstances in which an employee needs to take time off from work (such as domestic violence, jury duty, voting, etc.). Because state-specific laws and regulations differ so greatly, it is important for both employers and employees to carefully familiarize themselves with applicable legislation.
State-Specific Off-Duty Conduct Laws
Most states do not have any state-specific off-duty conduct laws. However, California, Colorado, New York, Nevada, and North Dakota (specifically with respect to firefighter off-duty conduct), as well as several localities, do have these laws. Many of these laws contain similar restrictions on employee off-duty speech and/or conduct. For example, several of these laws prohibit disciplining employees for off-duty participation in certain political affairs or controversies. Generally, only Colorado law states that employers must be concerned only with off-duty behavior "not related to the employee’s job performance." But, even this seemingly bright-line rule has exceptions. For example, while it is legal to fire an employee based on off-work, non-work-related conduct that "substantially interferes with the employee’s work performance," it is illegal to terminate a worker "for offering opinions or expressing political views outside of work."
In addition to employee rights, some of these laws impose specific duties on employers to avoid engaging in (or acquiescing to) employee off-duty speech that violates these statutes. For example, California law makes it unlawful for an employer to discriminate or retaliate against an employee for engaging in "political activities" away from work and requires California employers to "post a notice informing employees of their rights under this law." New York law imposes a similar obligation on employers – forcing municipal agencies to notify employees of their rights under that law when they are hired, reassigned, or promoted.
The scope of these state-specific off-duty conduct laws can differ significantly in significant ways. For example, the California law does not apply to professional sports team athletes, making it unique compared to laws in other states. In addition, California has a broad prohibition on disciplining employees for off-duty smoking, but New York City and the City of San Francisco do not have such a broad prohibition. Also, Virginia has a narrow public policy exception to the at-will rule and does not allow at-will employees to be terminated for engaging in certain off-duty conduct; although, other states also have similar narrow public policy exceptions to the employment-at-will doctrine and prohibit such terminations. Virginia law has a narrow exception where an employee’s termination was "based upon his exercise of rights guaranteed by the Virginia Human Rights Act or the Virginia Citizens’ Consumer Protection Act." Finally, Texas law currently has no off-duty conduct law.
Employers’ Rights and Limitations
Currently, 45 states and the District of Columbia enact some form of an off-duty conduct law. All state off-duty conduct laws prohibit employers from discriminating or discharging an employee related to his/her off-duty conduct (or lack thereof), off-duty political activities, and/or off-duty political and social activities.
However, while the wording in these state provisions may be similar, the impact is not. Some states utilize a "general" off-duty conduct law that broadly prohibits discrimination. For example, pursuant to N.J.S.A. § 34:6B-5 ("the New Jersey Law"), employers are prohibited from taking any adverse employment action against employees for their engagement in any legal activity, including but not limited to, off-duty drinking. Some states specifically include protection for off-duty conduct that occurs outside the employer’s presence, such as Illinois’ Employee Privacy Act, which provides that an employer may not penalize, retaliate or discriminate against an employee regarding "off-the-clock use of lawful products of lawful use and lawful use of lawful consumer products" during non-working hours or at other specified times. Additionally, states like New Jersey also address other terminations by providing that employees’ right to engage in "legal recreation activities" is protected, and employers may not "discharge . . . any employee for engaging in such activity during nonworking hours."
Some states have no express exceptions for an employer’s right to act upon an employee’s off-duty conduct unless the employer’s action violates another law. For example, in Georgia, public employers may only consider off-duty conduct if it is made unlawful under the law or if it is "necessary to avoid imminent and serious threat to life or safety to any person." O.C.G.A. § 45-1-4. Additionally, an employer must meet a high standard of review in order to terminate an employee based on off-duty conduct in Minnesota, which provides that an employer may not take "adverse action" against a current employee based on their "lawful conduct off the employer’s premises during nonworking hours unless the employer’s action against the employee is required by statute or regulation." Minn. Stat. § 181.938.
Some state laws do not have a general protection for off-duty conduct, but expressly exclude certain areas of an employee’s lifestyle from workplace considerations, including, but not limited to, smoking and tobacco use. For instance, Wisconsin expressly prohibits employers from discriminating based on an employee’s use of tobacco. Wis. Stat. § 111.322(2r). Similarly, Connecticut prohibits employers from hiring or terminating employees based on their lawful use of tobacco products. Conn. Gen. Stat. § 31-40s.
The interaction of these state laws can be challenging for employers. For example, while Pennsylvania does not have a state off-duty conduct law, it does prohibit public employers from considering a prospective public employee’s off-duty smoking or use of tobacco. 1998 Op. Pa. Atty. Gen. 33. Further, the laws regarding an employer’s right to regulate religious attire varies. Maryland’s law does not protect an individual’s religious dress unless the employer is a "state" institution. Md. Code, State Pers. & Pens. § 11-110(c). However, the New Jersey Law protects the right of individuals to wear certain religious attire regardless if they are working on public or private premises. N.J.S.A. § 34:6B-3.
In sum, employers must be cognizant of the applicable state law that regulates off-duty conduct when considering whether to act based on an employee’s off-duty conduct.
Employees’ Rights and Protections
Employers should be aware that in certain states, including New York, certain off-duty conduct laws provide employees with protections against adverse actions based on things like smoking, using legal products and/or engaging in other lawful, off-duty activities. For example, New York Labor Law Section 201-d makes it an unfair employment practice for an employer to refuse or require a prospective employee to refrain from smoking outside of work hours, absent certain conditions. Notably, New York employers may not be aware that a smoking restriction also includes the prohibition of smoking ecigarettes .
New York law pre-empts municipal ordinances related to the prohibition of smoking by employees, so even if a locality has enacted an ordinance making it a violation for an employee to smoke, this would still be protected under Section 201-d as long as the employee is not working on the premises of a health care facility or working for a business that sells tobacco products.
If you are an employee and believe that your rights have been violated under any of the statutes mentioned above, you have a right to file a complaint with the appropriate agency (e.g., the EEOC). The statutes of limitations for reporting varies, but they can range from one year all the way up to three years. The type of complaint you would file would vary depending on the specific violation.
Practical Implications of Off-Duty Conduct Statutes
The most common employment decisions impacted by laws addressing employees’ off-duty conduct appear to be hiring, firing, and workplace harassment, although off-duty conduct laws can touch on other topics as well. Hiring. A few states’ off-duty conduct laws prohibit employers from making hiring decisions based, even indirectly and in part, on an applicant’s off-duty conduct. New York’s law is the most far-reaching in this regard, as one state court recently held that a nursing facility, prohibited by NY CSL § 201-d from making hiring decisions on the basis of an applicant’s legal use of marijuana while off-duty, was obligated to hire an applicant rejected based on his firing-which was related to legal off-duty use of marijuana-even though that decision would have resulted in the employer violating federal drug-free workplace laws. In contrast, New Jersey’s law (like those in other states) appears to prohibit an employer from firing an employee for legal off-duty conduct. Because "hiring" decisions are not expressly "disciplinary actions," New Jersey state courts may not be likely to extend the law to cover the hiring process itself. However, this issue has not yet been directly addressed by the New Jersey courts. Firing. Although off-duty conduct laws are rarely directly applicable in wrongful termination cases, they can still be relevant to wrongful termination lawsuits brought on other grounds. For example, a judge imposed sanctions on the plaintiff in Vickers v. Exxon Mobil Co. for disobeying the court’s directive to stop posting unsupported defamatory comments about her former employer on Internet discussion forums. The judge wrote: "Shortly after I entered an order to show cause why [defendant] should not be awarded attorney fees and sanctions, plaintiff filed another post on the Internet rag where she makes these postings, stating:…’We will see how the case plays out at trial.’ While plaintiff’s use of the Internet to impugn [defendant] is troubling enough, her posting from just two weeks ago calling it ‘Email From Hell’ and claiming that, in discovery responses [defendant] did not deny its employees were fired for making complaints, when [defendant] did in fact deny that it illegally retaliated, while denying that it fired any employees who had filed complaints against it, shows the memories of both plaintiff and plaintiff’s counsel are sadly eroded. If plaintiff thinks that [defendant] was reckless enough or stupid enough in defending this case to violate N.J. Statutes Section 34:19-3, which covers retaliatory discharge of whistle-blowing employees, she remains mistaken. Unfortunately plaintiff’s persistent but false attack on the character and reputation of [defendant] shows that, rather than trying to settle this case with [defendant] as she claims she seeks to do, she continues to squander her talent by willfully pursuing this meritless case." Workplace Harassment. While laws prohibiting discrimination and harassment because of an employee’s legal use of certain substances (most commonly alcohol or marijuana) vary from state to state, even where such laws do exist, this typically does not prohibit employers from disciplining someone for being under the influence of those substances while at work. However, even if an off-duty conduct law does restrict employers from disciplining an employee for behavior that is not related to workplace safety or performance, that does not mean that the employer cannot restrict that behavior. For example, in 2011, a Kansas community college professor settled with the Equal Employment Opportunity Commission (EEOC) his claim that the college engaged in religious discrimination when it disciplined him for making "highly offensive" comments about his students during a Facebook posting. The professor had posted on his personal Facebook page, "Students in my class, are racially, ethnically and otherwise dysfunctional." He also wrote "FFA was always the crown jewel of [high school] education and it still is. And it is so easy to pick on a cow-humping like you." After justifying those comments with another posting, the professor was suspended and required to apologize to his class, which he did only after threatening to seek legal action against the college. For the posting, he was ultimately suspended for a semester. The EEOC took over the case after the settlement between the professor and the college and sued the school in 2012, ultimately reaching another settlement in May 2013 that required the college to revise its social media policies and to provide training to its employees on religious discrimination and harassment. The EEOC claimed that the college violated the professor’s rights by investigating his off-duty use of social media and that, without jurisdiction to investigate the "speech of public employees," it had to treat the matter as a religious discrimination case. Conclusion. Although the applicability of off-duty conduct laws to particular employment decisions still must be determined on a state-by-state basis, trends in how those laws are enforced, particularly in phases of litigation such as the discovery phase, suggest that employers should make efforts to comply with those laws.
Recent Developments and Trends
Over the past few years, there have been several notable changes and trends in off-duty conduct and social media laws across the country. As internet-enabled activity has become more prevalent and persistent, so too have efforts by individual stares to legislate around social media and other forms of electronic media. Although most of the recent legislative changes have been in the back drop of social media, a few states have included express protections for other forms of employers and employees’ off-duty conduct.
For example, in 2012, social media "privacy" legislation was enacted in North Carolina, Oregon, and Wisconsin. North Carolina is now among the majority of states with an employee social media privacy law. The law prohibits employers from requiring or requesting access to an applicant’s or employee’s social media accounts. Oregon’s social media privacy law mandates hiring entities to inform an applicant or employee of the purpose behind a request for their social media login and password. Wisconsin’s law is unique in that it also prohibits employers from discriminating against employees for lawfully using social media. The law’s protection is even broader in that it prohibits discrimination for engaging in any off-duty activity not related to a bona fide occupational requirement. These states join the ranks of employers in Ilinois, Maryland, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, Rhode Island, Texas, Utah, Vermont, Washington, and California which have similarly enacted social media privacy laws.
Not all states’ legislatures were able to act quickly enough in response to the somewhat unexpected popularity of social media in the workplace. For example, without an explicit legislative prohibition, Pennsylvania’s Cassar v. A Minimum Wage Restaurant disputed whether employers could limit use of social media sites during work hours. The Pennsylvania Supreme Court held that the state’s Wiretapping and Electronic Surveillance Act protects employee communications in private emails and text messages, requiring employers to have employee consent before monitoring or limiting their employees’ work-related use of social media sites.
Indiana and Florida, on the other hand, took a more overt approach to amending their employment laws to account for social media. Earlier this year, in June 2012 both Indiana and Florida passed laws that protect employees from having to divulge their social media content, including usernames and passwords. Like many of the "privacy" bills, however, both Indiana and Florida’s laws provide for exceptions "if the purpose of the request is pursuant to the employer’s lawful investigation of allegations of employee misconduct or employee misconduct" and the request is reasonably related to the investigation.
Alabama followed suit later this year, becoming the latest state to protect employees’ social media accounts. Alabama’s law is similar to the Indiana and Florida laws in that it also allows for employers to request employee social media usernames and passwords in the context of responding to employee behavioral allegations. Alabama’s law does not include a requirement that the employer’s request be reasonably related to the stated reason for the action and further, Alabama’s law is unique among its peers in that it restricts an employer from changing the employee’s password or accessing the employee’s account in an effort to circumvent the legislation’s limitations.
Conclusion: Deciphering Off-Duty Conduct Laws
In conclusion, be diligent and careful in your approach to off-duty conduct, even if none of these laws impact your current workplace environment. Just because a state does not have an off-duty conduct statute does not mean you can run amok in social media or otherwise engage in off-duty conduct without fear of consequences. In many states, especially at-will employment states, you are still an employee "at-will" and your employment can be terminated with little or no cause (as long as you fall under federal/state/provincial rules regarding protected classes). If you are an "at-will" employee, even Indiana’s law, which has NO exceptions to the right to terminate for any lawful reason, is not going to necessarily protect you from employment termination. Likewise, even if you are in a "just cause" jurisdiction, if you conduct yourself in a way that is antithetical to the interests of the employer or places the employer at risk for litigation, a "just cause" statute may not protect you. For example , just cause statutes do NOT prohibit an employer from terminating an employee who conducts himself unlawfully or in violation of applicable statutes or commits an act of criminal misconduct. Or, if the employer has a policy regarding offensive speech or illegal conduct, this conduct may not be protected even in a "just cause" state.
In sum, a quick examination of the applicable law in your state or province we can develop good practices regarding employee conduct that, if followed, minimize legal risks for employers, while maintaining employee rights for lawful off-duty conduct. In addition, such practices help ensure that employee handbook language is current and enforceable and can be presented to the court, if necessary, on a case-by-case basis. Don’t forget that if you are in a state with a private right of action, how employees interpret lawful off-duty statute may not be the way a court will interpret the law.
In states that don’t have off-duty conduct statutes, it may be prudent to adopt off-duty conduct laws or, at the least, to understand how the courts in your state would interpret such laws if they exist.