• Choose Language:
  • print
  • decrease text sizeincrease text size
    text

Your Rights Off-Duty Conduct

This page provides answers to the following questions:

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. My employer has started a "wellness program" and is giving incentives, such as bonuses and extra vacation days, to employees who exercise and lose weight. Is it legal for them to do this?

4. I have a blog, for which 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?

5. Is there anything I can safely write about in a blog for which my employer cannot fire me?

6. 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?

7. 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?

8. 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?

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 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?

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.

Twenty-nine states and the District of Columbia have laws which make it illegal for a company to fire or otherwise discriminate against an employee who smokes, while in the rest of the states, employers are free to discriminate against smokers. If you are subject to a policy banning smoking, you may want to consult with a local attorney to determine whether the policy appears to violate any laws.

Most of the companies implementing anti-smoking policies are giving their employees time to quit, 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.

3. My employer has started a "wellness program" and is giving incentives, such as bonuses and extra vacation days, to employees who exercise and lose weight. Is it legal for them to do this?

Most of us would like to be healthier and engage in better eating habits. Some companies, concerned about rising health care costs and employee productivity, have decided to help the process along by instituting wellness programs that encourage employees to become healthier by encouraging weight loss and exercise.

No one faults the good intentions behind the policies, but some are concerned about how such programs may intrude on an employee's private life and health status. The legal territory at this point is mostly uncharted, but any program which is not purely voluntary runs certain risks, which may include discriminating against disabled employees and/or illegally disclosing medical information. If you are subject to a mandatory wellness policy, you may want to consult with a local attorney to determine whether the policy appears to violate any laws.

4. I have a blog, for which 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?

Millions of individuals now have their own blogs. Blog is short for weblog--an online journal (or newsletter) that is frequently updated and intended for general public consumption. A blog generally represents the personality of its author or the website which publishes it.

Some of the millions of people who have blogs write about their work. While it may be tempting to share important details about your life, of which your job is an important component, or vent about bad things that happen to you at work, doing so can be risky. Your employer might not have created policies yet that specifically address blogging, but it's likely your employer's policies already address some of the issues related to blogs, such as protecting confidential information, upholding the company's reputation, and Internet use at work. If you violate some of these policies through what you write on your blog, you may not have much legal recourse. And finding a new job may also be difficult if future employers find your blog and are concerned about what they learn about you and your past employment by reading it.

The safest bet, if you are concerned that your employer will retaliate against you for what you're saying, or would just prefer to keep it private, is to blog anonymously or to restrict access to your blog. For more information on blogging and the workplace, see the Electronic Frontier Foundation's Blogger's FAQ on Labor Law.

5. Is there anything I can safely write about in a blog for which my employer cannot fire me?

In some states, if you write about political matters, you may have protection through laws which 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 above protections are fairly limited, however, so again: if you are concerned that your employer will retaliate against you for what you're saying, or would just prefer to keep it private, the safest bet is to blog anonymously or to restrict access to your blog. For more information on blogging and the workplace, see the Electronic Frontier Foundation's Blogger's FAQ on Labor Law.

6. 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 which may limit 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. 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's 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.

7. 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 stricter 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.

8. 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.

This page was updated on February 24, 2006

Follow us on: