Off-Duty on Guard Case

Traditionally business owners not only had the absolute right to create and promote certain environments within the workplace, but also to control certain activities in their employees’ private lives. “After all, employer-employee law was once known as ‘master-servant’ law” (Lype). Modern employee-employer relations have changed dramatically from the days when employers could control their employees’ private lives. Through advances made by organized labor and government legislation over the years, the employer’s right to monitor employees' conduct off the job, and make decisions based on that conduct has been significantly limited but not eliminated. Today, employers have the technology, and occasionally, legitimate reasons to find out what workers are doing on their own time, but how far should employers take this? Do good business decisions always measure up to moral and ethical standards?

Some historical examples

In the late 1800s and early 1900s, mine owners were able to control their employees’ purchasing habits. “The Miner T. Ames estate, which owns the mines here, insists upon the men trading out most of their pay in the estate's truck store, discharging those who refuse to do this” (Minonk Talk).

According to the Portage County Historical Society, in the early 1900’s educators were required to follow these “Rules of Conduct for Teachers”. 1. “You will not marry during the term of your contract. 2. You are not to keep company with men. 3. You must be home between the hours of 8 P.M. and 6 A.M. unless attending a school function. 4. You may not loiter downtown in ice cream stores. 5. You may not travel beyond the city limits unless you have the permission of the chairman of the board. 6. You may not ride in a carriage or automobile with any man unless he is your father or brother. 7. You may not smoke cigarettes. 8. You may not dress in bright colors. 9. You may under no circumstances dye your hair. 10. You must wear at least two petticoats. 11. Your dresses must not be shorter than two inches above the ankle. 12. To keep the schoolroom neat and clean, you must: sweep the floor at least once daily; scrub the floor at least once a week with hot, soapy water; clean the blackboards at least once a day and start the fire at 7 A.M. so the room will be warm by 8 A.M.” Off-Duty – On Guard

During the 1940s-1960s, the airline industry dictated the off-duty conduct of their stewardesses with strict rules. “Weight gain could mean grounding without pay...Stewardesses most emphatically could not be married: marriage spelled the end of the job. Hair had to be kept short, eyeglasses and jewelry were verboten and nail polish was mandatory” (Hall).

Today

Today, most people will agree that employers have just cause to control employee behavior during work hours and on company premises. However, those same people will think twice when employer control of behavior extends into employees’ private lives. In all of the aforementioned examples, the connection between off-duty activities and actual job performance is sketchy at best. In more recent times companies justify some intrusions into employees’ privacy by adhering to reasoning that has shown to stand up in court. According to Business Owner’s Toolkit, “to determine whether there is any action that you can take regarding an employee's lawful off-duty conduct, ask yourself the following questions:  Is there a relationship between the off-duty conduct of the employee and the performance of the employee's job?  Does the employee's off-duty conduct put your business in an unfavorable light with the public?  Does the employee's conduct have a potential for harming the business?”

During the selection process, employers have a legitimate interest in learning as much as they can about a potential employee who may join their ranks and become a representative of the company. However, while potential employees have fewer privacy rights than current employees (Fox), during a job interview, employers are cautioned against asking questions that refer to an applicant’s private life and seem to be unrelated to specific job duties, like:  “Do you have a drug or alcohol problem?  Are you taking any prescription drugs?  Would working on weekends conflict with your religion?  Have you ever been arrested?” (Resumagic.com)

During the tenure of employment, an employer cannot pry into an employee’s private affairs without just cause. In fact, “the employer must prove a connection or ‘nexus’ between the misconduct of the employee and the character of the employee’s employment or the employer’s legitimate interests” (Otto). Even if an employer has reason to believe that a particular off-duty conduct justifies some scrutiny, “the methods that employers use to obtain information about employee conduct off-premises, may be actionable under the common-law privacy torts.” (Fox) Employees cannot be forced to participate in activities they feel infringe on their right to privacy such as psychological or personality testing (Fox), company sanctioned political events, or company get-togethers after regular hours.

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Because illegal activity is beyond the scope of this paper, only legal off-duty activities will be discussed. This will eliminate discussion about concurrent off-duty activities such as drug use, arrests, and convictions.

Legitimate reasons employers may want to monitor their employees’ off-duty conduct

Economics First and foremost, corporations are concerned about their bottom line. They therefore, want employees who not only have ability, but who also are productive and loyal workers. Corporations would also like to avoid employees that impose a greater financial burden on the company. Employees who are unhealthy significantly increase cost to companies in terms of absenteeism, and likely will result in increased health care and sick pay claims.

Company liability for employee’s off-duty conduct The employer has a duty to provide a safe workplace for employees. “Failing to investigate an applicant can give rise to claims for negligent hiring if the applicant is hired and subsequently injures another employee” (Savage). There is a similar liability to the corporation if an employee is retained after management has been made aware of a possible danger and he or she then injures a coworker. For instance, a company may be aware of an employee’s excessive alcohol consumption, and may even tolerate it for whatever reason. However, if the employee injures someone, off-duty and off company premises, the company may be held liable. In the case of John v. Flynn, the court held the employer liable for the off-duty actions of the employee finding “that the employer created the opportunity for Mr. Flynn to drink and could have controlled the situation” (Otto).

Threats to Business Employers have a legitimate right to be made aware of off-duty conduct, either accidental or intentional, that embarrasses the company, jeopardizes the company’s ability to do business, or damages its corporate reputation. This includes actual damage to a business’ property and assets, both tangible and intangible (reputation). “Employers may sanction employees for... disreputable conduct that hurts the employer’s business or reputation despite an employee’s privacy or wrongful discharge claim” (Fox).

Some common types of legal off-duty conduct that employers may have the desire and ability to sanction

Moonlighting and other business activities may affect an employee’s job performance in several ways. The employer might be concerned that a moonlighting employee will use company time to do work for the other business, or that it may lead to abuse of paid time off. If the employee’s other job is with a competitor, it’s bound to produce divided allegiance and conflict of interest issues, and there is danger of exposing confidential trade secrets. Many companies or franchises include a ‘non-compete’ clause in employment

3 Off-Duty – On Guard contracts to prevent employees from setting up competing businesses and/or soliciting the employer’s customers.

Most companies have policies against nepotism and fraternization. Intimate relationships between coworkers can lead to conflict of interest problems, allegations of favoritism, and serious disruption of morale among coworkers. In addition, personal conflicts outside of work have a greater potential to affect working relationships. This is especially likely if one person is in a supervisory role over the other. Even when promotions or job assignments are rightfully earned, charges of favoritism will likely arise in a situation where nepotism or fraternization is involved.

In search of a healthier bottom line, employers are taking a closer look at one of the largest and fastest growing costs, healthcare. One way companies try to reduce the cost of healthcare is by promoting, or creating a healthier workforce by encouraging employees to change unhealthy lifestyles. Smoking has become a hot issue as more companies seek to reduce the number of their employees who smoke. “In 1999, each adult smoker cost employers $1,760 in lost productivity and $1,623 in excess medical expenditures” (CDC) affecting both job performance and health care costs to employers. However, the ability of a company to limit its employees’ smoking varies by state, and some states have included smoking in their anti-discrimination legislation (Freedman). Visit the American Lung Association online for a current list of states that have instituted smoker protection laws.

The right of an employer to discipline “Where an employee’s off-duty behavior is blatantly inconsistent with the mission of the employer”, will likely stand up in court (Fox). Legal disreputable off-duty conduct which a majority of people might find offensive such as participation in legal adults-only activities, overtly racist conduct, or solicitation (where legal) “may escape sanction if it is protected by the First Amendment” (Fox). However, the legal interpretation is broad, and “what constitutes a sufficient notorious act...will [likely] be assessed in light of the employer’s business needs and community mores” on a case-by- case basis (Fox). There also exists the possibility that productivity or morale will be adversely affected if coworkers won’t want to work with the employee because of his off- duty conduct.

On the face it would appear that all employees have the right to freely express their political views on their own time. However, there are some “instances in which employers may legitimately restrict the political expression of their employees...The Washington Supreme Court recognized a newspaper publisher’s constitutional right to prohibit public political activity by reporters, to protect the newspaper’s image of impartiality”. A similar situation arose when the courts upheld the dismissal of an employee who lobbied for legislation that was opposed by the company. (Fox)

Employers have also sought, under certain circumstances, to limit employee’s associations with groups that reflect adversely on the image of the company, or make coworkers uncomfortable. “For example, a bus driver was publicly identified as the Grand Dragon of the state branch of the Ku Klux Klan and was fired from the bus company. The discharge was upheld in the face of the harm an inevitable boycott against the company would cause”

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(Curtis). Employees’ religious affiliations and related activities are generally off limits to employers. “However, an employee who brings politics or religion to work, by proselytizing or attempting to convert others, [during off-duty times like lunch breaks], may be subject to discipline by the employer” (Nolo).

The Internet has become a double-edged sword for businesses. It is a powerful technological tool that provides efficiency, allows you to reach a vast audience at minimal cost, and saves time. It also provides the technology to track employees’ Internet activities. As long the employer is the Internet service provider, clickstream data can be tracked, even if an employee is logged on from home during off-duty hours. Email routed through the company server, is not considered to be confidential, since technology exists to view it. There are some legitimate reasons that a company may want to track employees’ digital excursions. First of all, the company may be liable for any digital correspondence originating from within its corporate network, and secondly, the network itself may put at risk (ie., from viruses) by the Internet activity of its employees (Dixon).

Technically speaking, past conduct is off-duty since it occurred during a time when an employee was not working for the corporation. Undisclosed prior convictions and arrests, which have been ‘paid for’ or vindicated, no longer render the employee illegal, but if “your business requires employees to work alone in customer homes, potential harm to the company [may be] enough to sustain a termination even though no actual business loss is demonstrated (Curtis).

The employees’ view

The employers’ desire to know, and employees’ reluctance to disclose, has created a new buzz-phrase, ‘lifestyle discrimination’. A topic so new, and so broad, that I was unable to find a working definition of it. So, borrowing a partial definition of discrimination from National Institute of Environmental Health government Web site, I came up with this approximation of a definition. “[Lifestyle] Discrimination is defined...as unfavorable or unfair treatment of a person...[because of participation in a particular type of legal activity during their off work hours] in comparison to others who [do not participate in the same activity]” (NIEH).

Employee rights versus the costs of doing business

There are some protections in place for union workers, government employees, and some private sector employees. However, states differ in their levels of protection for public sector employees and some, but not all, “permit an employee to sue for the ‘tort for wrongful discharge’ [which] provides some relief for employees from the employment at will doctrine” (Workplacefairness). However, since employers have had some measured success legally restricting off-duty smoking among their ranks, people concerned about their personal rights, and the broad nature of this discrimination, wonder what will be targeted next? Some are concerned employers be allowed to inquire into other off-duty conduct which could affect an employee's health, such as “caffeine, a legal stimulant...sun

5 Off-Duty – On Guard exposure, unsafe sex, fast foods, lack of exercise, and even dangerous, but legal activities, such as skiing and skydiving” (RYAN).

Corporations who use smoking and other risky lifestyle choices as selection criteria are applying a short-term solution to a long-term problem. “Smokers still make up 23 percent of the adult population” (Sappenfield) and by removing this large segment from the selection pool corporations may be sabotaging their own ability to achieve future competitive success. This may be part of the reason why “about a year and a half ago, Turner Broadcasting System in Atlanta rescinded its 14-year-old policy of refusing to hire smokers...[claiming] ‘it was a little too stringent’” (Freedman).

Employers’ monitoring and restricting of employees’ off-duty conduct is not without cost. Aside from the tangible cost of the equipment and labor to do the tracking, there are also some intangible costs. Monitoring employees affects the employer/ employee relationship in several ways. In a corporation that depends on teamwork and collaboration between managers and workers, monitoring employees’ off-duty conduct will not create the atmosphere of trust necessary for good working relationships. Employees respond differently when it’s known they are being monitored, they are less likely to have a favorable opinion of the company, and they often have lower morale.

“ Many employment experts believe it’s morally wrong to fire people because you don’t agree with their behavior or don’t like what they do in their spare time. ‘It’s a misuse of corporate power, says Lewis Maltby, president of the National Workrights Institute in Princeton, N.J. ‘There are countless unpopular groups in this country, and it’s just not right’ to prevent members of these groups from holding jobs. What’s more, a company may think it’s within its rights to fire someone for behavior that contradicts its value system, but, in fact, the person may be part of a protected class” (Hirschman).

According to Carolyn Hirschman, from Society for Human Resource Management, some things that may limit employers’ ability to discipline for off-duty conduct are, 1. “ Federal anti-discrimination laws prohibit all but the smallest employers from terminating employees:  Based on race, color, national origin, religion, sex, pregnancy, age and disability.  For engaging in legally protected activities such as union organizing, whistle- blowing, filing a workers’ compensation claim and reporting potential safety violations. 2. Written employment contracts and employee handbooks, either of which may specify that employees will be terminated only for cause. 3. Most collective bargaining agreements allow union employees to be terminated only for ‘just cause,’ and...most union contracts don’t allow termination for off-duty behavior unless it directly affects job performance” (Hirschman).

Different views of privacy

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A complicating factor in the issue of ‘lifestyle discrimination’ is that there are several interpretations of privacy, and levels of protection regarding employee off-duty rights depending on where you live, your specific job, and the specific situation.

Public employees are protected by federal legislation and “may invoke the U.S. Constitution to allege a right to privacy violation where they can show the necessary ‘state action’ required to make out a constitutional claim...Ordinarily, in cases involving discipline of public employees, the government must show an adverse impact on the employee’s performance or the ‘efficiency of the service’. When employee misconduct is ‘off-duty’ and non-work related, courts are generally unwilling to presume that discipline or discharge will promote the efficiency of the service; instead, the government must demonstrate how the off-duty misconduct adversely impacts the service” (Fox).

While private employees do not enjoy the same level of privacy protection, “private employers...[must also]...show just cause to discipline or terminate employees due to off- duty misconduct. [The onus is on the employer to] demonstrate that the employee’s off- duty misconduct is ‘reasonably related’ to the business and/or has the potential to adversely affect the business” (Fox). However, the broad scope of the relatively new “‘lifestyle discrimination’ statutes, that limit the right of employers to discipline employees for off- duty conduct”, are not well defined leaving the door wide open for interpretation (Fox).

Where you live, determines the level of protection enjoyed by private employees. It is true that “more than half of all states bar termination for various types of off-duty conduct” (Hirschman). However, that still leaves some states that do not provide broad protection for off-duty conduct.

Different types of jobs are held to different standards. When considering police and peace officers, “courts have imposed liability upon employers for seemingly ‘private’ conduct of employees if there is a finding that the conduct arose as a result of the employment relationship. This is particularly a risk when the employee is a licensed peace officer because the license itself provides the officer full authority, 24 hours a day, within his employing jurisdiction. Once an officer appears to have exercised police authority, the city may become liable for his/her actions even if the officer intends to act privately or exceeded his/her police authority... The mere use of police equipment may subject the city to liability. For example, an off-duty police officer, out of uniform but carrying a department required firearm, may be considered to have performed ‘official duties’ if he uses his gun while acting ‘under the color of law’” (Beety).

There seems to be a fascination with, and a growing sense of ownership in, the private lives of public people. Even though politicians must make personal financial information, and some medical records, available to the public, the current political environment has spawned a movement toward total disclosure, contending that politicians have no right to privacy. The followers of this current trend assert that all details of politicians’ off-duty conduct and private lives are relevant and should be open for scrutiny, as was painfully evident in our last presidential election. This feeling of public ownership has been extended to the private lives of other public figures like celebrities, and professional athletes who,

7 Off-Duty – On Guard not only manipulate the media for their own benefit, but are often, willing or not, role models for children who aspire to be like them. During their climb to fame they actively court the media, seeking buy-in from the public. Once they reach the top, the public continues to seek payback – it’s the price of fame.

Even though I used an outdated code of ethics in my historical example at the beginning of this paper to give emphasis to how far society as progressed, teachers and other professionals, who hold positions of trust and influence, are still held to a higher standard “recognizing that [these] professions impose responsibilities and limitations on freedom of action which do not exist in other professions” (Gust).

Teachers also teach by example, and there are many references to the off-duty conduct of teachers that can be sanctioned, since they serve as role models to children.  “A teacher serves as a role model for his or her students... failure to conduct [him or herself] as a role model impairs his [or her] effectiveness as a teacher” (Hahn).  “ Police officers and teachers appear to be held to higher standards of off-duty conduct than other public employees because they are ‘role models,’ and therefore they have fewer privacy protections” (Lype).  “ An important factor to consider...is the fact that teachers are role models for students whether a student is in a particular teacher's class or not. In addition to merely conveying curriculum information to children in the classroom, teachers play a much broader role in influencing children through their general demeanor in the classroom and through their off-duty lifestyle. This role model influence on students means that a teacher's off-duty conduct can fall within the scope of the employment relationship” (Ross).  “[T]eachers are to be held to a higher standard of conduct than other employees. School employees are held to a higher standard of conduct because they function as role models to children” (WisBar).

The military is another employer that holds its employees to a different standard in their private lives. While delving into the morass of military law is beyond the scope of this paper, suffice it to say, it is must more severe than the standard law-of-the-land. “[I]n the name of discipline and, ultimately, national security, the military requires its members to set aside their normal covers of autonomy and privacy to expose their personal lives, including their sexual relationships, for military inspection” (Winner).

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III. Case Questions.

1. “ What if an employee, while off-duty, engaged in a virulently anti-Muslim demonstration, or publicly expressed hatred for Muslims (or some other ethnic or religious group). Suppose further that the employee were a supervisor. Could the employer require that the supervisor not engage in such off-duty conduct, which is otherwise protected by the First Amendment?” (Adams, Howard) What if he was wearing a tee shirt with your company logo on it?

2. Your company gives an extravagant Christmas party after hours, and it is an unwritten rule that all employees must attend. However, one employee refuses to participate. Can you, or should you, partially base job assignments and promotions on whether, or not your employees participate in your company’s off- duty activities?

3. Besides smoking, should employers be allowed to inquire into other off-duty conduct, which could affect an employee's health, such as caffeine, sun exposure, unsafe sex, fast foods, lack of exercise, and even dangerous, but legal activities, such as skiing and skydiving...?

4. Your company is civic minded and socially responsible. Should you require your employees to participate in community activities, claiming that it is a reflection on your business reputation?

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