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Refresher on off-duty employee conduct and employer response

May 9, 2014

By Michael J. Burns, courtesy of SBAM Approved Partner ASE

Today’s employer must not only comply with employee protections in the workplace. In many states there are protections that apply outside the workplace as well, and the employer must observe those with equal care and vigilance.

Most non-unionized U.S. employers establish an at-will relationship with their employees. At-will employment states that the employer and the employee may terminate the employment relationship at any time with or without notice or reason. That said, the restrictions to this laissez-faire employment relationship are many.

Under federal law, the employer may not discipline or discharge employees for discriminatory reasons. These are race, color, religion, genetic information, national origin, gender, pregnancy, childbirth and related reasons, age, disability or handicap, citizenship status or military service status. Further protection includes adverse employment decisions based on time taken off under the Family and Medical Leave Act (FMLA), complaints under the Occupational Safety and Health Act (OSHA) and certain involvement with Fair Labor Standards Act (FLSA) and discrimination or harassment complaints.

All of these protections relate to employer or employee behavior in the workplace itself (whether physical or virtual). However, federal law also extends to certain protections outside the workplace:

  • Protection against termination or hiring discrimination due to bankruptcy
  • Protection of off-duty social media behavior that can be tied to what the National Labor Relations Board defines as “protected concerted activity.” This technical term applies to an employee’s activities intended to organize or extend collective bargaining privileges to fellow employees.
  • Protection against discipline or termination for sharing wage and salary information with fellow workers regardless of the locale the communication is made in. Whether that protection applies throughout the entire Internet (i.e., communications meant for non-employees) remains to be seen.

State and local laws and ordinances are where much of the more obscure off-duty protections can be found. Depending on the state, these protections extend to smoking, elections and voting, certain types of court-related leaves of absence, victims of crimes and/or abuse, medical marijuana, and the possession of firearms. Michigan currently does not have laws addressing employee protections of elections and voting, victims of crime and/or abuse, medical marijuana or possession of firearms.

A minority of states currently have protections in place against employer repercussions for any legal off- duty conduct during non-working hours unless it relates directly to the job (i.e., is a Bona Fide Occupational Qualification) or may put, or appear to put, the employee in conflict of interest with the employer. Some states also protect employees from termination or hiring discrimination for using “lawful consumable products” (e.g., alcohol and tobacco).

Though employers still retain a fair amount of authority in the workplace, they must be aware of, and in turn compliant with, the ever broadening laws and regulations protecting employee behavior off the job.

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