There are plenty of things employees
may be doing off-duty that you might not approve of,
whether it's unhealthy or anti-social behavior, or
even some unlawful activities, such as smoking
marijuana (depending on the laws in your area). Yet
even with an "at will" employment relationship,
which in theory allows you to terminate an employee
for any reason, plenty of exceptions exist.
of those exceptions are clearly spelled out by state
and local laws. For example, Montana prohibits
employers from disciplining or firing employees for
off-hours, off-premises use of "lawful consumable
products" such as alcohol or tobacco.
In fact, most states ban adverse action against
employees on the basis of tobacco use. And
California, always at the vanguard on employee
rights issues, bars employers from taking any
adverse action against an employee for any lawful
conduct off the job.
Some states are enacting laws that allow employees
to do things during working hours that employers
might find troubling, such as bringing firearms to
the workplace. However, many such laws allow
employers to require employees to keep their weapons
locked up in their vehicles outside. Some states
that permit employees to bring firearms to work give
employers legal immunity if civil claims arise as a
result of this policy. Of course, it would be better
to avoid such problems in the first place.
What your employees are doing when not at work
generally is only a matter of legitimate concern to
can show a relationship between that behavior and
the job performance, or the job performance of other
behavior or action can damage your company's
action can hurt your business concretely in some
Here are some possible examples of the first
An employee sexually harasses or assaults a
coworker, supervisor or subordinate,
An employee is involved in a "hate crime" that would
be disruptive to your workforce when that employee
is present, and
An employee who drives other employees or customers
in the normal course of his or her job is convicted
of driving while intoxicated.
The second criterion involves damage to your
company's reputation. Such behavior can be hard to
pin down, and might vary according to the stature of
the individual. A newly hired, entry-level
employee's notorious after-hours behavior would
probably cause less harm to your company's
reputation than that of a long-term senior manager.
But regardless of the person's stature, it's
important to be able to show that harm was caused.
For example, if challenged, you might need to make
the case that knowledge of the offensive behavior
The most common example of the third criterion,
concrete harm to the business, is an employee who
moonlights for a competitor. In general, you are
within your rights to establish and enforce a policy
barring employees from working for your competitors.
As with policies governing behavior at work, it's
important to formalize your guidelines by putting
them in writing. Make the guidelines clear and
detailed, and ensure your employees are familiar
with them. Then enforce them consistently.
Unless you have a crystal ball, you might only learn
about offending off-duty employee behavior from
other employees. Naturally you'll need to seek
verification that the information is accurate before
proceeding. Depending upon the nature of the
misdeed, that verification might be gained through
public police records.
Often you'll need to make a subjective assessment as
to whether the report is worth investigating. The
determining factors are its relevance to the
employee's job effectiveness and possible harm to
If you ask the alleged perpetrator about the matter
and the allegation is false, you may needlessly
disturb the employee and create friction in your
relationship with that worker.
Also, whether the allegation turns out to be
accurate or false, it's important for the "witness"
not to discuss it with other employees. If the
allegation is based on hearsay and is untrue, the
accused employee's reputation will be needlessly
sullied. If it's accurate, then it's a personnel
matter that should be handled just as discretely as
Keep in mind that you need to "let the punishment
fit the crime." Your options are no different than
those available to you with respect to on-the-job
behavioral policy guideline infractions, ranging
from taking no action, to suspension (with or
without pay), to termination.
If you plan to terminate the employee, do so only if
you're confident you can beat a wrongful termination
charge by being able to show how the behavior has
harmed the business. You will also need to be sure
your action doesn't violate any state or local laws.
An employment attorney can guide you through the
For more information,
Boris Benic, CPA,
or click here to email Boris.
He would be happy to address any questions you may