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Employment Blog

Off-Duty Conduct - Taking Adverse Employment Action

Authored by Dean R. Dietrich
Posted on May 29, 2014
Filed under Employment

There is a lot of controversy today about the right of an employer to take adverse employment action (i.e. firing someone) for off-duty conduct. Employers have more access to things happening outside the workplace and are very concerned about their overall reputation in the community. Unfortunately, there are various laws that protect an employee from any type of adverse employment action because of lawful off-duty conduct.

The most obvious protection is found in Wisconsin statutes which provide that it is discrimination to take adverse employment action against someone who engages in lawful off-duty conduct involving the use of products. This law was written to prevent discrimination against an employee who smokes off-duty when the employer prohibits smoking in the workplace. This law has been expanded, however, to cover many other types of uses of lawful products during off-duty hours. One example is medical marijuana that would be considered a lawful product in some states that could be used during off-duty hours although employers still may discipline an employee if the presence of marijuana exists when the employee is in the workplace. Another example might be use of caffeine before coming to work.

Another law that protects employees for lawful conduct is the possession of concealed carry weapons when off work. Employers may not prohibit an employee from possessing a weapon and leaving it in their personal vehicle on Company property even though an employer can prohibit an employee from having a concealed carry weapon in the workplace. This again is an area where employers are limited in how they can address the conduct of an employee during off-work hours.

A more difficult area to assess is the use of social media by an employee during non-work hours. The National Labor Relations Board has issued a number of decisions holding that an employer may not restrict what an employee says on social media about the workplace because a restriction would constitute a violation of the rights of an employee to organize or to comment about working conditions. The content of a social media post may be subject to some scrutiny by an employer but much will depend upon the nature of the comment and whether the comment addresses an issue of protected speech under the National Labor Relations Act.

Regulating the off-duty conduct of an employee is something that has come under a great deal of scrutiny both through legislative acts and legal rulings. Employers must be very careful when considering adverse employment action against an individual because of what they have done during non-work hours. Employers still have the right to protect the reputation of their business but the limits to that protection require a great deal of scrutiny before action is taken.