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Let’s say an employee complained about being harassed outside of work. Managing employee behavior outside the workplace may be a concern. Can you tell employees how to behave when they’re not on the clock?
While employers have the right to regulate employees’ on-duty conduct, they are more limited in how much control they can exert when employees are not on duty.
We know issues may arise when employees engage in social activities after hours where they feel they can let loose or otherwise act in a way that is inconsistent with company policy. While an employer can’t regulate what goes on in that setting – in fact, many states protect legal off-duty conduct – you can expect and require that there not be any residual effects that carry over into the workplace. For instance, if an employee made threatening comments about a certain religious group on their Facebook page, and these comments were seen by another employee who then felt fear in the workplace, you would need to address this behavior.
It’s also worth keeping in mind that there is a higher legal standard for the behavior of supervisors. Employers will always be responsible for harassment by a supervisor that results in a tangible employment action like demotion, termination, or constructive discharge – even if the harassment originated outside the workplace. And even if the harassment from a supervisor doesn’t lead to a tangible employment action, the employer is liable unless it proves that it exercised reasonable care to prevent and correct the harassment and that the employee “unreasonably” failed to complain to management.
Your best defense is a clear sexual and unlawful harassment policy along with well-trained managers. This should help limit problematic behavior outside of the workplace, as well as assist your managers and supervisors in dealing with these issues if they begin in, or seep into, the workplace.
For more information on how GTM advises clients on HR issues like this, contact us at (518) 373-4111.
