Monitoring Employees' Off-Duty Conduct

Should you keep track of what employees do when they're not on the job?

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Today, employers have the technological means, and occasionally the inclination, to find out what workers are doing on their own time. However, your right to monitor your employees' conduct off the job -- and make decisions based on that conduct -- is limited. If your investigation or questions invade an employee's right to privacy, you might end up in court.

Privacy Law

Employees of government and public entities have a constitutional right to privacy that protects them from most employer monitoring of, or even inquiring about, their off-the-job conduct. For public employers, then, this type of monitoring is largely off-limits.

In the private sector, a number of laws prohibit employers from intruding into their employees' lives outside of work. Some state constitutions specifically provide for a right to privacy, which prevents private employers from looking into their employees' off-duty activity. Some states, including California, have laws prohibiting employers from taking any job-related action against a worker based on that worker's lawful conduct off the job.

Even in those states that don't provide private workers with a constitutional or statutory right to privacy, it is generally illegal for an employer to intrude unreasonably into the "seclusion" of an employee. This means that physical areas in which an employee has a reasonable expectation of privacy are off-limits to employers, unless there is a very good reason to intrude. And an employer is never allowed to physically enter an employee's home without consent (even when searching for allegedly stolen property belonging to the employer).

The same balancing approach often applies to private information. Generally speaking, an employer may not inquire about or otherwise obtain facts about employees' private lives. For example, an employer may not ask employees about their romantic relationships or sexual likes and dislikes. 

Courts and legislatures have created some specific rules for certain types of private, off-duty activities.

Union Activity

Under the National Labor Relations Act (NLRA), it is illegal for an employer to monitor or conduct any surveillance of employee union activities, including off-the-job meetings or gatherings. This rule also applies to any concerted activity (that is, activity undertaken by workers acting together, rather than individually) even if no union is involved, as long as employees are discussing their work conditions or terms of employment. An employer who sends a supervisor to eavesdrop on such meetings, or plants a spy among employees engaged in such conduct, violates the NLRA.

Drug Testing

Because drug testing has the potential to reveal an employee's use of drugs outside of work hours, it has been the subject of much privacy litigation. In general, drug testing is permitted in the job application context, where employees are performing safety or security-sensitive work, or when an employee has given an employer some reason to believe that he or she is impaired by drugs at work. (See Testing Job Applicants for more information about drug testing.)

Political and Religious Activities and Beliefs

An employee's off-the-job political and religious activities are off-limits to his or her employer. Federal and state laws prohibit discrimination on the basis of religious or political affiliation. However, an employee who brings politics or religion to work, by proselytizing or attempting to convert others, for example, may be subject to discipline by the employer.

Moonlighting

Generally speaking, working more than one job is lawful. However, an employer has the right to limit after-hours work that is in conflict with the employer's own business. For instance, going to work for the competition could provide grounds for discipline or discharge.

Marital Status

Many states make it illegal for employers to discriminate on the basis of marital status. Therefore, employers may not keep track of whether their employees are single, married, or divorced, except as may be necessary for providing certain benefits such as health insurance. However, tricky issues can arise when, for example, one spouse applies for a position in which he or she would supervise the other, or an applicant's spouse works for the hiring company's major competitor. To find out whether your state prohibits marital status discrimination, and how its law might apply to situations like these, contact your state fair employment practices agency.

Illegal Activities

May an employer take action against an employee who has been arrested for driving under the influence or convicted of a crime? If an employer learns that a worker has engaged in illegal conduct off duty, can the employer ask the worker about it? In many states, the answer to these questions is "no," unless the off-duty illegality has some concrete impact on the employee's work or the employer's business interests. An employer would be entitled to look into the drunk driving arrest or conviction of a bus driver or the embezzlement conviction of a bank employee, for example.

For a complete guide that contains everything you need to know about being an employer, get The Employer's Legal Handbook: Manage Your Employees & Workplace Effectively, by Fred Steingold (Nolo).

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