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Your Rights Off-Duty Conduct

Outten & Golden LLP

Giskan Solotaroff Anderson & Stewart LLP

There is no single law protecting the rights of employees while they are off work. Instead, other areas of the law, such as discrimination, drug testing, and harassment laws, protect an employee’s off-duty conduct. Therefore, each different off-duty conduct issue must be looked at carefully. This page provides answers to many common questions about off-duty conduct, but for issues with off-duty conduct it is always advisable to have a local attorney look at your case. To learn more about your rights with respect to off-duty conduct, read below:

1. Can my employer fire me for what I do on my own time, outside of work?

2. My company has announced that it is going to fire anyone who is a smoker, after strictly enforcing an anti-smoking policy at work for several years. Can I be fired for smoking on the evenings and weekends, even if I have never violated their policy at work?

3. I have a blog, that I write on my own time. I occasionally mention things that happen to me at work, but don't identify who my employer is. Can I get in trouble for this blog?

4. Is there anything I can write about in my blog that I cannot be fired for?

5. I have a second job on weekends, which never interferes with my work for my full-time employer. My employer's personnel handbook has a "no-moonlighting" policy. Can my employer restrict me from working for someone else when it doesn't interfere with my work?

6. My company has a policy which requires employees to report to the company if they're dating co-workers. I recently began dating someone in another department. She doesn't supervise me or work on my team. Do I have to tell the company that we're dating?

7. My company has a "no fraternization" policy that restricts managers from socializing with non-management employees. Is it legal to have this kind of policy?

8. I smoke medical marijuana in a state where it’s legal, however, my employer fired me for testing positive for marijuana. Is that legal?

9. I recently came out as gay and when my employer found out I was fired. Is this covered by discrimination laws?

10. A co-worker is sending me harassing emails through his personal account while off-duty. What should I do?

11. I recently tried to get promoted to a managerial position but I was denied because I would be supervising my husband. So I tried applying to a different company but they wouldn’t hire me because my husband works for the competitor. Can they do this?

1. Can my employer fire me for what I do on my own time, outside of work?

The answer to this seemingly simple question is: it depends. It depends on the activity involved, and whether that activity has any legal protection under your state's laws. Generally speaking, if there is no law specifically protecting you from being fired for the activity under consideration, and if you are not a union or governmental employee with special protection against being fired without a reason, then you are employed at will.

Employment-at-will means that both the employer and the employee can end the employment relationship at any time without notice or reason. This means the employer has the right to terminate your employment at any time, for any reason, for no reason at all, or for a bad reason, so long as the reason is not illegal--even if your performance has been outstanding. For more information, see our site's at-will employment page.

So if the reason for your termination is not illegal under the laws of your state, then yes, your employer can fire you for what you do on your own time, outside of work.

2. My company has announced that it is going to fire anyone who is a smoker, after strictly enforcing an anti-smoking policy at work for several years. Can I be fired for smoking on the evenings and weekends, even if I have never violated their policy at work?

Maybe. A new trend is increasingly taking hold, where companies looking to reduce their health care costs have established not just a "no smoking" policy, but a "no smokers" policy. These companies not only refuse to hire smokers, but some are even taking the drastic step of terminating current employees who smoke. Whether your company can do this depends on where you live, as some states have laws preventing employers from discriminating against smokers, but other states provide no such protection and leave employers free to fire employees who smoke.

Most of the companies implementing anti-smoking policies are giving their employees time to quit smoking, and are supporting their efforts by sponsoring programs and paying for aids to quit smoking, such as medication, nicotine gum, and patches. If you value your job and truly want to quit smoking, you may want to take advantage of these additional incentives, or you may want to look for a new job without such restrictive policies.

For more information on your rights as a smoker visit our page on Smoking and the Workplace.

3. I have a blog, that I write on my own time. I occasionally mention things that happen to me at work, but don't identify who my employer is. Can I get in trouble for this blog?

Generally, an employer can fire you for having a personal website or blog that it deems inappropriate, with very limited exceptions. Even if you have a non-work related website that you don't access from your office, employers can fire you if they feel the content on your personal site or blog is offensive to them or to potential clients, or reflects badly on the company.

For more information see the Workplace Fairness page dedicated to Social Networking and Computer Privacy. Additional information can also be found at the Electronic Frontier Foundation's Blogger's FAQ on Labor Law.

4. Is there anything I can write about in my blog that I cannot be fired for?

In some states, if you write about political matters, you may have protection under laws that make it illegal to discriminate against you for engaging in political activity. A handful of states have laws restricting an employer's ability to fire you for "lawful conduct outside of work," which might offer some protection. For more information on these laws, see our site's page on political activity retaliation.

If you're whistleblowing--reporting the employer's unlawful conduct--you may have some protection if you've reported it to a government agency first. And if you use your blog to communicate with your coworkers for the purpose of forming a union or otherwise banding together to oppose bad working conditions, you may be protected by labor laws which allow you to engage in concerted activity for "mutual aid and protection." See our site's retaliation for union activity page for more information.

The protections listed above are fairly limited, so if you are concerned that your employer will retaliate against you for what you're saying, or you would just prefer to keep it private, the safest bet is to blog anonymously or to restrict access to your blog.

5. I have a second job on weekends, which never interferes with my work for my full-time employer. My employer's personnel handbook has a "no-moonlighting" policy. Can my employer restrict me from working for someone else when it doesn't interfere with my work?

This issue can sometimes fall into a gray area, but the answer is probably yes, your employer can restrict you from moonlighting, whether through its personnel policy or by requiring that you sign a non-compete agreement that limits the type of work you can do for anyone other than your current employer.

Most states do not have laws protecting your right to work for another employer, and in the absence of any legal protection, you are most likely employed at will, meaning you can be terminated at any time for any reason. Even if you were not employed at will, violating your employer's policy would be sufficient "just cause" grounds for termination or discipline. (However, if you live in a state with a law restricting an employer's ability to fire you for "lawful conduct outside of work," that law might offer some protection. For more information on these laws, see our site's page on political activity retaliation.)

If it is essential for you to moonlight for financial reasons, or you are gaining experience which might help you advance within your current company, then you may wish to talk to your supervisor or someone in your company's human resources department to find out the reason behind the company's policy, and to see whether your employer is willing to make an exception to the policy. If they understand that your primary loyalty is to your full-time job, and respect the reasoning behind your need to moonlight, then you will have resolved this issue in a way that doesn't risk your full-time employment. If, however, they say no, then you will have to make a decision about whether you can continue in your current employment, which is always easier to make before you are terminated for violating company policy.

If your company does not have a moonlighting policy, then it may not be a problem for you to have a second job, but to be safe, you might want to consult a supervisor or your company's HR department. Also, you should never conduct any business related to your second job while working for the first employer, which includes phone calls, e-mails, and use of your primary employer's supplies or business contacts.

6. My company has a policy which requires employees to report to the company if they're dating co-workers. I recently began dating someone in another department. She doesn't supervise me or work on my team. Do I have to tell the company that we're dating?

Some companies concerned about sexual harassment have instituted strict "anti-nepotism" or dating policies which seek to prevent workers from dating certain or all coworkers. While generally these policies are designed to prevent you from dating someone in your chain-of-command, be sure that you do not violate your company's policy, which may be more strict than the most common policies. Some companies now ask that you notify the company before dating a coworker, and may require that you sign a "relationship contract," indicating that the relationship is voluntary and consensual.

An increasing number of companies are adding these policies, and most of these policies have thus far survived legal challenges. If your company has such a policy, it is probably best to comply with the policy and disclose the relationship, especially if your relationship has reached a point where other coworkers are likely to find out about it. Voluntarily disclosing the information up front will make it easier for you and your company to address any potential problems that could result, such as issues related to one employee's authority over another, promotion/advancement which could lead to supervision issues, and what happens if you break up.

7. My company has a "no fraternization" policy that restricts managers from socializing with non-management employees. Is it legal to have this kind of policy?

You might think that who you hang out with when you're off the job is not the boss's business, but the National Labor Relations Board (NLRB) recently upheld a very restrictive anti-fraternization policy, which made it against the rules for a security company's guards to "fraternize on duty or off duty, date, or become overly friendly with the client's employees or with co-employees."

While the policy was ostensibly enacted for safety and security purposes, its chilling effect goes much further. The policy was challenged by the guard's union, who argued that this kind of provision discouraged workers from exercising their right to organize unions and engage in concerted activity. (For more information, see our site's retaliation for union activity page.) After all, if you can't get overly friendly with your fellow employees, or spend time with them away from the workplace, chances are good that you're not going to feel safe complaining about work to someone you don't know very well, and certainly aren't going to take the chance of talking about banding together to join a union.

While the NLRB's ruling says that "we believe that employees would reasonably understand the rule to prohibit only personal entanglements, rather than activity protected by the Act," it's still unclear which "personal entanglements" would violate the company's policy. If more employers enact similar policies preventing fraternization, it is likely that there will be more lawsuits brought by workers fired for violating them, given the difficulty of defining what kind of relationships violate such policies and the possibility that they inhibit union and other collective activity. If you are subject to a no-fraternization policy, and have questions about what it means, you may want to consult with a local attorney to determine whether the policy appears to violate any laws.

8. I smoke medical marijuana in a state where it’s legal, however, my employer fired me for testing positive for marijuana. Is that legal?

Yes, despite marijuana recently being made legal in some states, an employer can still fire an employee for testing positive. As seen in a recent Colorado case, this applies even to medical marijuana, though Arizona and Delaware currently have laws protecting medical marijuana users. The main justification for employers freedom to terminate employees who test positive for marijuana is that using and possessing the drug is still illegal under federal law, even though it is legal in some states. For more information on marijuana and employment related drug testing visit our Drug Testing page.

9. I recently came out as gay and when my employer found out I was fired. Is this covered by discrimination laws?

Maybe. The answer differs between states and depending on whether you work for the federal government or a private employer. Workplace Fairness has a Sexual Orientation Discrimination page that more thoroughly covers topics like protection from discrimination, the legal differences between sexual orientation and gender identity discrimination, whether you can take a leave to care for your partner, and more.

10. A co-worker is sending me harassing emails through his personal account while off-duty. What should I do?

While there are laws protecting you against harassment, whether a company will take action against an employee for off-duty harassment depends on the company policy. For example, if the harassment is creating a hostile work environment, many companies will discipline the offender. For more information on harassment visit our Harassment and Other Workplace Problems section and read about the harassment most closely related to what you are experiencing.

11. I recently tried to get promoted to a managerial position but I was denied because I would be supervising my husband. So I tried applying to a different company but they wouldn’t hire me because my husband works for the competitor. Can they do this?

Federal law is silent on the issue of marital discrimination. As a result, many companies have an anti-nepotism policy. However, while anti-nepotism policies may be legal, sex discrimination, sexual orientation discrimination, and violations of employee privacy are not, and that may afford you some protection. For more information visit our Family Responsibilities Discrimination pages.


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