Terminating Employees for Off Duty Conduct

Many people may be surprised to discover that in some situations an employer may regulate or take adverse employment action against an employee as a result of off-duty conduct.

If the employment relationship is at-will, an employer can terminate an employee for practically any reason, so long as it does not violate any other federal, state  or local employment law.

There are a variety of reasons for why an employer may want to terminate an employee for off-duty conduct. Certain types of off-duty employee conduct could result in an expensive lawsuit for the employer.

For example, many sexual harassment claims are based on employee conduct outside of the workplace. Any inappropriate sexual conduct that an employer is aware of, especially predatory conduct,  puts the employer on notice that its employee has a propensity to engage in such behavior.

Action is then necessary to ensure that potential victims are no longer exposed to this employee, and so that the employer is not exposed to negligent hiring liability.

Additionally, off-duty conduct also has the potential to harm an employer’s reputation, such as if a supervisory employee posts a racially insulting and derogatory statement on his personal Facebook page on the internet.

Although the employee’s posting itself would not create liability for the employer if it was not related to his job, it could have ramifications in the workplace if other employees are aware of the comment.

Further, other off-duty conduct such as smoking and other unhealthy lifestyle choices may result in increased medical benefit costs for employers.

Some states have enacted legislation to protect employees from adverse employment actions resulting from legal off-duty activities. Colorado, Indiana, New Jersey, North Dakota Oregon, and South Dakota for example, specifically prohibit employer discrimination against smokers.

Colorado’s legislation allows employers to constrain the lawful, off-duty activities of their employees only when 1) the restriction relates to bona fide occupational activity; 2) is reasonably and rationally related to the employment activities and responsibilities; or 3) is necessary to avoid an actual conflict of interest or the appearance of one.

Some states such as Arkansas, Alaska, Arizona, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Oklahoma, Tennessee, Texas, Utah and Washington, have enacted legislation permitting employees to keep firearms in their vehicles in their employer’s parking lot.

If an employer is engaged in a regulated industry such as childcare and healthcare, certain criminal convictions will disqualify the employee from continued employment. However, many jurisdictions have enacted ban-the-box laws that limit an employer’s use of criminal history record information.

The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.


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New Jersey lawyer turned blogger, podcaster and legal changemaker.