Let’s say a friend saw one of your employees at a social event, and they told you he was engaged in questionable behavior (drinking, foul language, etc.). Managing your employee’s conduct when they’re not on the clock may be a concern. Can you regulate employee off-hours behavior? How much influence do you have?
While employers have the right to manage an employee’s on-duty conduct, they are legally more limited in how much control they can exert when employees are not on duty.
Issues may arise when employees engage in social activities after hours, when they feel they can let loose or otherwise act in a way that is inconsistent with policies when they are at the workplace. 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 your business. For instance, if an employee made threatening comments about a certain religious group on their Facebook page, and these comments were seen by you or other co-workers who then felt uncomfortable in your workplace, you would need to address this behavior.
According to BizFilings, in order to determine whether there is any action that you can take regarding an employee’s lawful off-duty conduct, ask yourself the following questions:
- Is there a relationship between the off-duty conduct of the employee and the performance of the employee’s job?
- Does the employee’s off-duty conduct put your business in an unfavorable light with the public?
- Does the employee’s conduct have a potential for harming the business?
If you can demonstrate that the employee’s off-duty behavior adversely impacts the employee’s job performance or reflects negatively on the business, you may be able to take action. This may include disciplining the employee but not suspending or terminating them, suspending the employee without pay until an investigation is concluded (this may mean paying for a temporary worker during the investigation), or terminating the employee.
Keep in mind, although legally, you cannot control your employee’s behavior off the clock, you can ask for discretion in certain areas. Discuss the possibility of issues like this during the interview and early employment process, and lay out clear expectations. Advise your employee to limit who can see their social media activity and reiterate to them that their conduct, even when not on duty, is a reflection both on them and on the organization they work for. The best thing to do is express your concerns up front. This should help limit problematic behavior when your employee is off the clock.