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HR[preneur] Episode 9: How an Employee's Off-Duty Conduct Impacts Your Brand

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Your company's brand and reputation are critical to your success. So, it's understandable that you'd be concerned how an employee's actions outside of work impact your company's image. In this episode, we'll address to what extent you can consider an employee's conduct outside of the workplace when making employment decisions.

Episode Info

How an Employee's Off-Duty Conduct Impacts Your Brand (click to listen/download podcast)

To what extent can you consider an employee's conduct outside of the workplace when making employment decisions? For example, can you decide not to hire a smoker, if your company policy prohibits smoking on company property? What if an employee is arrested outside of work hours, for a non-employment related offense -- can you terminate the employee? State laws vary, and you have to be cautious when making these types of decisions. ADP's legal counsel will tell you about what you need to consider.

Reference Shelf

• Why You Need to Plan for Employee Off-Duty Behavior
• Considerations for Talking About Politics in the Workplace

Speaker Info

Kara Murray is the Vice President of Sales Operations for ADP's Small Business Client Channel. Kara has been with ADP for 9 years and has been in various sales and sales leadership positions while she has been with ADP. One of her primary goals is to educate our clients on the ever-changing HR landscape and how ADP can help them overcome everyday workplace challenges.

Kristin LaRosa is Senior Counsel for ADP's Small Business Services division. Prior to joining ADP, Kristin worked as an employment lawyer where she represented employers in litigation and provided legal advice and counseling on day-to-day employment and HR matters.

Meryl Gutterman is Counsel for ADP's Small Business Services division. Prior to joining ADP, Meryl worked as an attorney in private practice representing small businesses in employment-related matters.

Full Transcript

Kara Murray: Your company's brand and reputation are critical to your success. So, it's understandable that you'd be concerned how an employee's actions outside of work impact your company's image. Which begs the question: to what extent can you consider an employee's conduct outside of the workplace when making employment decisions?

I'm Kara Murray. And this is HR[preneur] – a podcast by ADP. You work incredibly hard to support your employees and make your business a success. More than likely this means you wear lots of hats, and one of those might be HR professional. We're here to help you get the insight you need in order to tackle day-to-day workplace issues.

This week, I'm joined by Kristin LaRosa and Meryl Gutterman. Both work as Counsel for ADP's Small Business Services.

Thanks to the ADP Client Appreciation Program for sponsoring this episode. You can get free payroll by referring ADP, and you can find out more by talking to your ADP representative.

Alright. So, Kristin, I know that when misconduct occurs during work hours, employers have some flexibility in how they address the situation, as long as they're consistent and fair. But, what about activity that happens when employees are off-duty?

Kristin LaRosa: That's a great question, Kara. First you have to think about what state the employee works in. A number of states have "off-duty conduct" laws that are designed to protect employees who engage in lawful activities outside the workplace. Some limit coverage to very specific conduct, like protecting employees who smoke tobacco or drink alcohol. Other state laws are more general and simply extend protection to all lawful off-duty conduct. So to your question, an employer may not be able to take any action against an employee whose off-duty conduct is protected under a state law.

Kara: So, does that mean your hands are tied if employees are engaging in activity that you don't agree with?

Kristin: Not necessarily. Your hands may be tied if you find out the activity is protected by an off-duty conduct law, but some of these laws do have exceptions. For example, if the activity in question creates a conflict of interest with the employer's proprietary or business interest. Just because you can't control the off-duty conduct, doesn't mean you don't have the right to implement workplace rules. For example, some employers may want to avoid hiring workers who smoke because they're concerned that the smell of smoke may irritate customers or co-workers. But, since smoking outside of the workplace may be protected, you typically can't base employment decisions a person's status as a smoker. You can, however, ban smoking in the workplace and on company property.

Kara: What about addressing conduct when an employee is representing the company after-hours?

Meryl Gutterman: There are situations where you can expect your employees to comply with company policies while off-duty, at a company event let's say, or while traveling for work. For example, employees should be expected to abide by your sexual harassment policy after hours.

Kara: Ok. So off-duty conduct protections extend to lawful activity. But, what if an employee is arrested or convicted of a crime while employed by you?

Meryl: Even if one of your employees is convicted of a crime, it may not automatically be grounds for termination, although most laws allow employers to take certain actions if the conviction relates to an individual's job duties. For instance, if a driver is convicted of a DUI. Before taking any adverse action, evaluate the facts related to the offense and the employee's history of offenses.

Kristin: That's right. You also asked about employee arrests. Employers have to take a cautious approach. Some states prohibit employers from taking adverse employment action against an employee because of an arrest, since an arrest isn't proof of wrongdoing. The EEOC takes a similar position. However, there may be some exceptions when the underlying conduct is relevant and somehow makes the employee unfit for the position.

Kara: Switching gears a bit, Kristin, I know some states provide protections for political activities outside of work. What type of activity is protected?

Kristin: The laws at the state level are quite varied, but generally, these types of laws may protect employees based on things like their political beliefs or affiliations, voting choices, or their support or even lack of support for a particular candidate. I would caution employers that even in the absence of a law, it's really not a good idea to make employment decisions based on an employee's involvement in political activities or their expression of political beliefs, even if you strongly disagree with their position.

Kara: So, last year when photos spread across social media of rallies organized by white supremacy groups, some employers questioned whether they could terminate employees who attended. Even if an employee attended after-hours, could this be considered a justifiable business reason to fire them?

Kristin: Well, employers are going to need to evaluate these types of decisions on a case-by-case basis. As we talked about, employees may be protected for engaging in lawful off-duty activities. But, if the employee violates a law when off-duty, such as assaulting a protester at a rally, that conduct generally wouldn't be protected under a state's off-duty conduct law, but you would still have to be mindful of laws relating to action taken due to an arrest or conviction.

Or, if you find that an employee's conduct contributes to a hostile work environment in violation of anti-harassment laws or other workplace policies, you may argue that the conduct is not protected. Overall, these situations can be tricky, and it's probably best to consult legal counsel if you're unsure about whether or not you have a legitimate business reason for the termination.

Meryl: That's right. And another angle to consider here is protections under the National Labor Relations Act (or NLRA). The NLRA gives employees the right to work together to improve wages and working conditions. So, if an employee is participating in a rally that supports a minimum wage increase, for instance, this activity would likely be protected.

Kristin: Clearly, there are a lot of moving parts at play here where a number of different employment laws are overlapping. Certainly enough to give you pause before taking action against employees due solely to their participation at a rally.

Kara: There's one more topic that I'd like to discuss today. And that's moonlighting. Can employers restrict employees from working a second job while employed with the company?

Kristin: Depending on your applicable law, you may be able to place restrictions on outside jobs that pose a direct conflict of interest. It's best to avoid outright bans, but you can still hold employees working second jobs to your performance and attendance standards. So, if you find that an employee's outside work is interfering with their ability to be on time or meet deadlines, address the issue from a performance perspective.

Kara: What if an employee is using company equipment to moonlight for a second job?

Kristin: This is a valid concern. If an employee is using a company vehicle to moonlight for a second job as a driver, for example, this wouldn't be allowed. Or if an employee is using a company printer to print marketing materials for a second job, this is also generally grounds for discipline.

Kara: So, how can employers set clear expectations with employees holding outside jobs?

Meryl: We recommend employers have a written policy that explains employees must first meet the demands of their current job, which might include covering co-workers shifts or working overtime, and that disciplinary action may be taken if a second job interferes with the employee's ability to perform their current job.

Kara: It sounds like the proper response to employee's activity outside of work is not always obvious, and that understanding laws that protect off-duty conduct and privacy is key. Kristin, Meryl, do you have any additional advice for employers?

Kristin: I would say whether you are thinking about off duty conduct, arrests or convictions, always make sure employment decisions are based on job-related information only and be aware of laws at the state and local levels. And even if there's no specific protection for off-duty activities, you will want to be sure that any employment action is based on how the conduct relates to the job.

Meryl: Also, if and when disciplinary action is necessary, be consistent with how you've handled similar situations regarding off-duty conduct in the past.

Kara: Thank you so much, Kristin and Meryl. We want to thank you all for listening to HR[preneur]. I'm Kara Murray. For all the latest episodes, subscribe on Apple Podcasts, Google Play, or wherever you listen to podcasts.

Podcast Overview

HR^[preneur], a podcast by ADP's Small Business Services, is designed to help you get the insight you need in order to tackle day-to-day workplace issues. In each episode, you'll hear from industry experts about the latest in HR, such as the #MeToo movement, evolving marijuana laws, and more. Each episode will be between 10 and 15 minutes long, but full of practical advice. Find us on Apple® Podcasts or visit the HR^[preneur] podcast page on Podbean.