Overview of Off Duty Conduct Laws 50-State Survey
Employment policies concerning off duty conduct are becoming more common, and many states currently have such laws or regulations concerning off duty conduct. State laws and regulations typically limit the employer’s ability to take adverse action against an employee for the employee’s lawful use of legal products off the premises and off the employer’s time. Such legal products include, at minimum, tobacco and alcohol. Specific limitations on the employer’s ability to require drug testing may also be imposed by state law or regulation. Off duty conduct laws are also being expanded in many states to prohibit employers from taking adverse actions based on employees’ lawful use of social media.
Recreational and legal use of cannabis is one currently hot topic on off duty conduct, and employers are curious what they can and cannot do relative to their employees’ use of cannabis in the states that have legalized or decriminalized cannabis . While the interpretation of these laws varies, some states protect lawful off duty conduct that occurs outside the employer’s premises and outside the employer’s time, potentially including the use of recreational cannabis by employees who recreationally use cannabis when they are off duty.
Employers wishing to draft or implement any off duty conduct policies to take advantage of these laws should be aware that off duty conduct laws vary widely across the country. Generally speaking, there are three categories of states:
Where no law or regulation exists, due to the conflicts and uncertainty between state and federal law regarding the subject of marijuana, if an employer in a state with no restriction on off duty conduct considers adopting or implementing an off duty conduct policy, it is best to consult experienced employment counsel regarding the best practices for implementing such policy.
Federal Law & Off Duty Conduct
Federal law does not specifically regulate off duty conduct, although subsequent court decisions have held that Title VII bars discrimination based on sexual orientation. See e.g., Heller v. Columbia Edgewater Country Club 2001 U.S. Dist. LEXIS 10435 (D. Or. 2001). The District of Columbia and 13 states across the country have enacted their own anti-discrimination laws that prohibit discrimination based on sexual orientation.
Unlike federal regulations regarding workplace conduct, many states have enacted laws regulating when employees can be disciplined for off duty conduct. In some states, the laws are limited to certain types of off duty conduct (e.g., smoking, marijuana use, political conduct and protections for firefighters). In other states, the statutes apply more broadly to "off duty" conduct. For example, Colorado law prohibits an employer from discharging any employee for engaging in lawful activities off the premises of the employer during non-working hours. The list in Colorado of lawful activities is broad and includes smoking, drinking alcohol, gambling, attending shows, voting and running for public office (only one might be relevant). Maine law also restricts an employer’s ability to take adverse employment action for off duty conduct that does not adversely affect the employer’s business or its customers. Recent amendments to the Colorado statute have made it easier for an employee to bring a claim of off duty conduct, and courts have rejected defenses based on an employee’s violation of an employer’s conflict of interest policy.
Maine law provides the most expansive protection regarding off duty activities. The statute prohibits employers from discriminating on the basis of off-duty activity unless the employer can demonstrate: (1) that the activity infringes on a legal duty of loyalty and fidelity (from an employment contract); (2) the activity has occurred knowingly and with malice; or (3) the activity is not compatible with the contractual relationship. This statute renders many employer policies prohibiting or limiting off duty conduct void.
General notice: anti-discrimination laws in some states prohibit discipline of employees for lawful off-duty activities that occurred at work and non-working hours. (See Minnesota, South Dakota, Montana, and other states). As a result, employers may not be able to take disciplinary action for an employee’s conduct that occurs outside of the workplace. If the law applies, employers could be prohibited from disciplining employees if the off duty conduct does not have a negative effect on the employer or its customers or complies with a conflicting employment contract.
State Law for All 50 States
California: California is the only state that expressly protects employees’ engaged in legal recreational activities, including smoking marijuana. However, this protection is limited to acts lawfully undertaken outside of employment. Employers have a right to ensure employees focus on their work, so if "off duty" activities cause disruptions in the workplace, they may be restricted by the employer pursuant to its employee conduct policies.
New York: Non-safety employees in New York may not be terminated for engaging in legal recreational off-duty activities. A non-safety employee is an employee that has not been employed in a safety-sensitive position such as doctors, teachers, or emergency personnel. No specific conduct is permitted (i.e. – smoking marijuana) and the employer is not required to accommodate an employee’s legal off-duty conduct. Employers may, however, still maintain zero-tolerance policies and enforce reporting requirements.
Massachusetts: Similar to the protections afforded to non-safety employees in New York, Massachusetts also does not allow a non-safety employee to be terminated for participating in legal off-duty activities. For example, an employee could not be terminated for smoking marijuana. Employers, however, are not obligated to accommodate an employee for violations related to illegal drug use in the workplace.
Kansas: Kansas does not have any law that prevents employers from terminating off-duty employment for the use of marijuana. If an employer has a zero-tolerance policy that prohibits employment if an employee uses marijuana while not working, then a Kansas employer can terminate an employee for engaging in such conduct.
Colorado: Colorado protects off-duty "lawful action" that is not related to the performance of employees’ work. Similar to the laws in New York and Massachusetts, this protection would not extend to medical or recreational marijuana use.
Montana: Montana provides protection to employees for "lawful activity[ies]" conducted outside the course of the employer’s business. As with Colorado, this protection would extend to cashing Social Security checks but would not extend to marijuana use.
Texas: Texas does not have a law similar to the laws in New York, Massachusetts, and Colorado. Marijuana use is not protected under Texas law. However, if marijuana is being used to treat an employee’s disability, then the employer may be required to accommodate use, similar to the laws in Florida and Georgia.
Impact Off Duty Conduct Has on Employment
Employees and their employers frequently worry about whether conduct occurring outside of work will have an impact on the employment relationship. In appropriate circumstances, neither public nor multistate employers are generally prohibited from taking adverse action against an employee for off duty acts involving violence, harassment, or other crime, even where those acts had no connection to the workplace. Off duty acts that may provide a legal basis for employment discipline or termination are far from limited to criminal acts. A court may uphold a termination for obvious violations of company standards even if the employee was not yet at work or at home off duty. For example, the termination of a male employee for violating a zero tolerance policy for sexual harassment by jaywalking across the street to hug a female employee in a public shopping plaza was found not to be discriminatory under the circumstances.
Some employers are encouraged by their organizations, law enforcement, trade associations, the federal government, or other organizations to adopt standards for their conduct. For example, federal contractors must follow the federal contracting standards, including a "zero tolerance" standard for workplace violence, sexual assault, and sexual harassment. Employers in some industries are required to follow the Federal Communications Commission’s Rules of Conduct for Wireless Radio Services ("FCC Rules") even in their personal time. For example, one company terminated an employee for allegedly disclosing confidential information when he posted an amateur radio video on his personal Youtube account. The employee filed a complaint alleging the termination violated his rights under the First Amendment, but the Fourth Circuit Court of Appeals held that the employer’s termination of employee violated neither the FCC Rules nor the First Amendment. The Court stated that "[t]he video’s only published substance is the act of disclosure. The company had a right and duty to protect its proprietary information." In this case, even though the employee was off duty, the Speech Clause of the Constitution protects employees only when they act as citizens, not when they act under color of their employment.
Some employers knowingly define the scope of their employment relationships through off duty conduct (that is, at the time of hire). When an employer notifies an employee that violations of certain standards are grounds for termination from on or off duty conduct, or that certain types of conduct are violations of company standards requiring immediate termination, the employer may rely on the notice to provide a basis for an adverse decision where the employee violates those standards.
Although it is not generally prohibited, termination or discipline for off-duty conduct that constitutes protected activity can be challenged by the employee. For example, an employer could be liable for retaliatory discharge where it terminates or disciplines an employee for social media posts referencing the employer in connection with protected activity like health care advocacy campaigns, pay gap issues, or concern over environmental impact.
Employee Exemption from Employment-At-Will
An oft-stated protection for employees under off duty conduct laws is the right to privacy. However, the right to privacy in an employment context is not universal. In fact, some states such as Minnesota, have rejected the idea of a "special constitutional right to privacy" in the employment context. And California, for example, does not recognize a cause of action for invasion of privacy where an employee "lack[s] … a reasonable expectation of privacy."
Assuming an employee has a reasonable expectation of privacy, many off duty conduct statutes provide for a secondary level of protection under the general anti-retaliation provisions . For example, New York and Nebraska laws make it unlawful for an employer to discharge "any person" who exercises rights provided by law. Similarly, Montana and Colorado prohibit an employer from discriminating "against an employee who exercises that employee’s rights" under the law. Phraseology aside, these provisions are there to protect an employee who is terminated for taking a protected action, such as exercising a right protected by an off duty conduct statute.
Balance Between Employer’s Interests and Employee’s Rights
While employers have an understandable interest in protecting the reputation and security of their companies, policies that infringe on the rights of employees to privacy, freedom of expression and association are likely to be met with resistance from employees and, in some jurisdictions, by government enforcement actions striking down the policies as unlawful or inappropriate.
In order to balance these sometimes conflicting interests, there are several steps employers can take to perform a self-audit of their current policies, review their interests and develop an approach that is consistent:
•Clearly define the interests that are being served by the policy, e.g., maintaining the company’s reputation and preventing security or safety breaches.
•Conduct an audit of the company’s policies to determine which policies implicate privacy, freedom of expression and association.
•Review those policies with counsel to determine if the policies are necessary and not overly broad in order to accomplish the company’s objective.
•Refine those policies as necessary to more narrowly tailor them to meet the company’s objectives.
Another approach is to adopt policies that, while clearly setting out the employer’s interests, also specifically incorporate recognition of the employee’s rights to privacy, freedom of expression, freedom of association and equal protection under state and federal law. Such policies are more favorably laid out under circumstances of potential scrutiny than policies that do not acknowledge employees’ rights to privacy and other freedom protections in creating rules of conduct. Further, this sort of language would be a strong basis upon which to argue that the employer was not attempting to restrict off-duty conduct but was instead merely seeking to ensure that its policies were fairly applied to all employees, for example, to prevent the harassment of, or defamation upon, others.
Recent Cases on Off Duty Conduct
A few notable cases frame the contours of the off-duty conduct laws.
In the 2002 case of Volokh v. State Board of Education, the Ninth Circuit Court of Appeals addressed the First Amendment state constitutional provision that would give greater rights to California teachers. The plaintiff in Volokh was fired from his teaching job because he had advocated the banning of homosexual books from the education curriculum. The Ninth Circuit found that the teacher’s statements were a public and political debate on a controversial topic and not "school-sponsored speech." California courts have followed this case in the context of the "free speech clause" in its Constitution which protects teachers’ rights to discuss controversial issues.
Five years after the Volokh case, the California decision Lapin v. University of Southern California, 100 Cal.App.4th 1100 (2002) adjudicated a similar off-duty conduct claim by a doctor who was fired for a public statement that the university and hospital were charging exorbitant fees for its harm-reduction program. The doctor had worked at the clinic as a volunteer and expressed his displeasure with how the organization charged fees based on income levels. The California Court of Appeal held that the employer could develop a policy prohibiting doctors from making public statements about patients, even if the doctors are speaking about the institution as an employer and even if the statements are in the context of defending the charges against them for failure to follow such a policy. Thus, the California court permitted broad restrictions on an employee’s off-duty speech.
Conclusion & Implications
In sum, state Off Duty Conduct Laws offer different levels of protection for employee off duty conduct. The most robust of these are the laws in California, Colorado, Montana, North Dakota, Nevada, and Washington, which prohibit employers from making any employment-related decisions based, in whole or in part, on an employee’s off duty conduct. Other Off Duty Conduct Laws have more limited protections, such as those in New York, which prohibits employment decisions based on a "legal recreational activity" over which the employee primarily exercises personal responsibility, such as smoking, drinking, or volunteering. The least protective of these laws are the laws in Georgia, Indiana , Iowa, Kansas, Kentucky, Ohio, Oklahoma, South Dakota, and Texas, which permit an employer to fire or take other adverse action against an employee for any reason, even a forbidden one, unless the action itself is forbidden by contract or statute, unless the employee is required to pay union dues.
Given the above, what are some best practices for employers? Not surprisingly, employees will benefit from learning their rights pursuant to federal law, their company’s policies, and the states in which they work. Not all states have Off Duty Conduct Laws or provide protection for employees who engage in legal recreational activities, and of those that do, not all apply to all industries.