EMPLOYEE OFF-DUTY CONDUCT – WHAT CAN EMPLOYERS DO?
Employers often express concern about employees’ off-duty activities that affect their job performance or the employer’s brand. It is tempting to regulate what employees can and cannot do to limit the adverse affects on business. However, employers should be careful. Certain well intended policies may go awry of state or federal protections. Don’t tarnish your company’s name with unnecessary and costly litigation.
Most states offer some level of protection for lawful off-duty activities. These protections vary. Some are limited to certain specified activities. Others are expansive, protecting all kinds of lawful activities. It’s important to understand what protections exist in the states where you operate and crafting your policies accordingly.
Let’s take a moment to review some common areas where employers may get themselves into trouble:
Alcohol and Tobacco
For a variety of reasons, including promoting a healthy workforce and saving on the costs of healthcare, employers may decide that hiring workers who use tobacco and/or alcohol is not in line with these ideals. However, this can be problematic (and even illegal) in states with lawful use statutes — like Nevada. However, off-duty consumption that carries over into the workday can likely be disciplined without issue.
NRS 613.333 makes it an unlawful employment practice to fail or refuse to hire a prospective employee or discharge or otherwise discriminate against an employee because the employee engages in the lawful use of any product outside the premises of the employer during the employee’s nonworking hours if that use does not adversely affect the employee’s ability to perform his or her job duties.
Therefore, as long as the employee’s use of tobacco or alcohol does not affect his or her work performance or cause a safety issue, an employer is limited in what they can do to curtail such off-duty conduct. Be mindful that this statute may also apply to the lawful use of marijuana, which is legal in Nevada.
It’s 2017 — everyone has some sort of online presence that is only a Google search away. Therefore, it is tempting for employers who find information on job applicants or employees to use that information to discipline or otherwise regulate off-duty conduct that the employer believes affects the business. But be careful.
Nevada is one of many states which prohibits an employer from conditioning employment on disclosure of an applicant’s or employee’s personal social media account information or from discharging, disciplining, or otherwise discriminating against an employee or applicant who refuses to do so. See NRS 613.135.
Further, employers who discipline workers for social media activity may be in violation of the National Labor Relations Act (NLRA), which provides protections to employees for engaging in protected concerted activity. Things like posting comments on Facebook about wages or working conditions, or liking a co-workers comments on the same topics likely falls within the purview of the NLRA.
Employers should review their social media policies to make sure they are compliant with state and federal law.
With recent news coverage regarding political rallies and protests, like the white supremacist rally in Charlottesville in August, employers may be asking what they are permitted to do when an employee is involved in such activities. This is a tricky area.
For private-sector employers there is likely no issue under federal law. The First Amendment’s protections for freedom of speech and assembly only apply to the government. Private employers do not have to allow employees to voice beliefs that other employees or management find offensive. Government employers are more limited in what actions they can take. Additionally, while some groups have argued that participation in such activities is a religious activity that is protected under Title VII of the Civil Rights Act, courts have largely rejected that argument.
At the state level, its a little more tricky. What types of off-duty conduct and activities are protected vary state by state. For example, California, Colorado, New York, and North Dakota define (and therefore protect) off-duty activities more generally. Nevada has several laws that limit what employers are permitted to do regarding an employee’s political activity or off-duty lawful use of a product, but also gives great latitude to the at-will employment relationship, which permits termination for any reason or no reason at all so long as it is not for an unlawful reason.
Any instance where an employer is considering disciplining or terminating an employee for off-duty conduct should be carefully reviewed and determined on a case-by-case basis. Employers should make sure they have all the facts. They should avoid any knee-jerk reactions and fight the impulse to take any immediate actions. Employers should consult legal counsel or a trusted business consultant to make sure any decision that is made is compliant with state and federal law.
Do you know all your obligations as a Nevada employer? The Nevada Association of Employers (NAE) is here to help. Our staff of HR professionals is equipped with the knowledge and experience to assist employers in navigating the often complex world of employment-related statutes and regulations. Contact NAE today!
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