I Know What You Did Last Weekend… Should Employers Regulate Off-Duty Conduct?

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June 1, 2020

Many of you are reopening (if you were closed) or bringing back staff who were either laid off or teleworking.  With this comes MANY questions, such as: CAN we monitor off-duty conduct, and if so, SHOULD we??

If you are a private sector employer, your employees work in Wisconsin, and barring an employment contract or collective bargaining agreement to the contrary, then YES, legally you can have policies that regulate off-duty conduct.  While Wisconsin has a “lawful consumable products” statute which protects employees who consume lawful products (alcohol, tobacco, etc.) on personal time, that is as far as it goes.  However, check state law if you have employees outside of Wisconsin as many states have laws protecting employee activities outside the workplace.

So, then the question becomes SHOULD you monitor off-duty travel, attendance at mass gatherings, and whether your employees are wearing masks at the local Fleet Farm?  That question is difficult for us to answer.  It depends on your culture, your size, and how many resources you have to devote to this type of monitoring.  The difficulty with such a policy is consistent enforcement.  This means from the boardroom  to the assembly line, do you have the capability to make sure everyone is treated equally? Right now, there is no Wisconsin state order in place that requires masks, bans travel, or prevents mass gatherings (however, check local law, e.g. Dane and Milwaukee Counties still have orders in place).  Also complicating things is your employees have varying views on the pandemic ranging from “everyone should wear a mask all the time” to “just try and make me wear a mask.” This will polarize your workplace if you let it.

If you decide to implement or continue a policy that regulates off-duty conduct,  be as transparent as possible regarding the reason behind your decision, and take time to listen to your employees who disagree.  You will not please everyone.  However,  employees who feel “heard” are more likely to respect your policy decision  (even if they do not like it).

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The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.

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