Can my employer fire me for getting a DUI while I was off work?

Find out if it is legal for an employer to fire you for getting a DUI while off the job.

By , J.D., UC Berkeley School of Law

Question: Can I Lose My Job if I Get a DUI?

I work as a salesperson at a software company. I recently got a DUI when I was driving home from a night out with friends. I wasn't working at the time or driving my company car. But my license was suspended for a month, and after that I'll have a restricted license that doesn't allow me to drive anywhere except to and from work. I have to drive to see clients two afternoons a week for work, but I'm hoping that between public transit, my wife, my son, and a couple of friends, I'll be able to cover it. I'm worried about my job, though. If my boss finds out about the DUI, can he fire me?

Answer:

Most likely, the answer is yes. Most employees in the U.S. work at will, which means they can be fired at any time, for any reason (and they can quit at any time, for any reason). There are a number of exceptions to the basic at-will rule, including laws that prohibit employers from firing employees for certain reasons. An employer may not, for example, fire an employee because of his or her race or because he or she is collecting workers' compensation benefits.

In your situation, however, no exception applies to protect you. Some states have laws prohibiting employers from using off-duty conduct -- including the legal use of lawful products, such as tobacco or alcohol -- as a basis for employment decisions, including firing. If this type of law applies, your employer could not fire you for drinking. But a DUI is different: An employer who fires you on that basis is firing you not because you drink alcohol, but because you operated a vehicle while impaired.

Some states also protect employees from being fired based on their arrest records. And, some states prohibit employers from making job decisions based on certain criminal records, if they bear no relation to the job. In your case, however, you were convicted. What's more, because your position requires driving, a court would certainly find that your conviction is job-related.

That's the real problem you're facing: You were not simply convicted of a crime, but of a crime that is directly related to -- and, in fact, impairs your ability to perform -- a requirement of your job. In this situation, your employer would be well within its rights to terminate your employment based on the DUI.

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