Off-Duty Conduct and Employee Rights

Can your employer keep track of what you do when you're not at work?

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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, their right to monitor what you do off the job -- and make decisions based on that conduct -- is limited. This article explains the ins and outs of off-duty conduct and employees' rights under the law, and specific rules for certain types of private, off-duty activities. (For information on your privacy rights while you're on the clock, check out Nolo's Right to Privacy at Work FAQ.)

Privacy Laws and Employees' Off-Duty Conduct

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 this reason, public employees are largely protected from monitoring.

In the private sector, a number of laws prohibit employers from intruding into their employees' lives outside of work. Some state constitutions specifically include 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 you have 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 your 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 or otherwise obtain facts about employees' private lives. For example, an employer may not ask an employee about her sex life with her husband.

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 Nolo's article Drug Tests for Job Applicants for more information about your legal rights if you're asked to take a drug test.)

What About Medical Marijuana?

More than a dozen states allow residents to use marijuana for medical purposes. These "medical marijuana" or "compassionate use" laws typically require the user to have a written doctor's authorization to use marijuana, often for particular diseases or disabilities. If a patient meets the criteria, he or she cannot be prosecuted under state law for crimes relating to the use, possession, or cultivation of a certain amount of marijuana. Federal drug laws still apply, however.

If you live in one of these states and have a valid prescription for marijuana, you may be wondering whether an employer can refuse to hire you based on a positive drug test for this legally prescribed drug. So far, the answer seems to be yes. The California Supreme Court has ruled that the state's medical marijuana law applies only to criminal prosecution, not to the workplace. The Oregon Supreme Court also found against the employee in a medical marijuana case, but didn't decide the ultimate question of whether an employee who is using prescribed marijuana for a disability is entitled to an accommodation for his or her drug use.

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.

by: , J.D.

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