Handling Employee Off-Duty Conduct Without Legal Backlash in Your Small Business
You may find yourself facing a tricky situation as a business owner when you find out that an employee has engaged in inappropriate behavior or illegal activity outside of work hours. This can range from a social media post gone wrong to more serious legal issues like being arrested.
On one hand, employees have a right to privacy and freedom outside of work. On the other hand, their behavior (if sufficiently egregious) can damage your company’s reputation, disrupt the workplace, and even lead to legal ramifications. It can be hard to draw the line between what you should address and what you should leave alone. How you handle these situations can have implications for your business, your employees, and your culture. This blog post will help guide you in how to handle these challenges.
Understanding the Boundaries Between Work and Personal Life
When faced with off-duty conduct situations, it's important to make the distinction between lawful and unlawful off-duty conduct. If the conduct in question is lawful, you cannot do anything about it. Some laws also prohibit employers from discriminating against employees for engaging in lawful off-duty conduct. Examples of such conduct would be smoking or participating in protests.
It’s important to first acknowledge that employees are entitled to a private life outside of work. What they do on their own time is generally their business, not yours. However, there are certain circumstances where off-duty conduct can overlap with your responsibilities as an employer, particularly if the behavior:
Involves Illegal Activity: An employee engaging in illegal off duty conduct could pose a risk to your business, especially if it relates to their job responsibilities. For example, your bookkeeper is convicted of theft at their night job.
Ask: Does the conduct or behavior directly affect the employee’s ability to perform their job?
Violates Company Policies: If the off-duty behavior conflicts with your company’s code of conduct or policies, it can warrant attention. For example, a video is sent to you from another employee showing your salesperson committing a hate crime toward an individual.
Ask: Does the conduct or behavior violate any specific company policies?
Impacts the Workplace: Off-duty behavior that affects an employee’s ability to perform their job or creates tension among other employees, may necessitate action. For example, someone on the team is circulating a public record of an employee registering as a sex offender six months ago.
Ask: Does the conduct or behavior create a hostile or uncomfortable work environment for other employees?
Harms the Company’s Reputation: Social media posts, public incidents, or legal issues can affect your company’s brand if the individual is clearly associated with your business. For example, an employee is caught shoplifting in a shirt with your logo on it.
Ask: Does the conduct or behavior damage your company’s reputation or brand?
Steps to Take When Addressing Off-Duty Conduct
If the behavior has no direct impact on your business, take no action and do not mention anything to the employee – this will be the case more often than not. However, if the employee’s off-duty behavior crosses a line, you’ll need to determine the appropriate response. When confronted with a situation involving an employee’s off-duty behavior and you can answer ‘yes’ to any of the above questions, consider the following steps:
1. Consider legal implications
Although the technological means is available to find out what employees are doing on their own time (like viewing employee social media pages), there are laws protecting employees' off-duty conduct. Many states protect employees’ right to privacy when it comes to off-duty conduct, so you have to be careful to not inquire about off-duty behavior unless lawful to do so.
Illegal activities are typically not protected under these same right to privacy off-duty conduct laws, but there could still be limitations. These limitations can vary between what you can ask employees regarding criminal records or what adverse action you can take against the employee because of the record. An example is that many states prohibit employers from asking employees about arrests that did not lead to convictions, but employers can ask about pending charges and convictions.
Even for states that don’t provide a constitutional or statutory right to privacy, you may not intrude unreasonably into the “seclusion” of an employee. This means you cannot enter an employee’s physical home without consent, even if searching for company property. Also, you may not inquire or otherwise obtain facts about highly personal aspects of an employee’s private life. For example, you cannot ask an employee about their sex life.
Always first consult an employment attorney or an HR Consultant like CPR to understand any potential legal implications to understand what actions you can legally take (even if it’s simply talking to the employee), if any.
2. Investigate the Incident
Do not speak with the employee about their off-duty conduct until you have been legally advised to do so by an employment expert like CPR. Doing so opens your business up to a high probability of legal risk. If cleared by CPR, investigate the incident by gathering all the relevant facts. Avoid jumping to conclusions based on hearsay or rumors. Conduct a fair and thorough investigation, which may involve:
Reviewing any evidence and facts, such as social media posts, police reports, or witness statements.
Developing a list of legally reviewed and approved investigation questions to thoroughly paint a picture of the incident.
Documenting your findings carefully.
Speaking with the employee directly to get their side of the story.
3. Consider The Severity of The Conduct
After the investigation, consult with CPR to understand potential legal implications based on findings, your legal rights as an employer and the legal rights of the employee.
Evaluate whether the off-duty conduct has any direct impact on your business. Part of this evaluation involves answers to the questions in the first section. If there is no direct impact, inform the employee that the investigation is closed and there is no further action.
4. Take Appropriate Action
If the investigation reveals that the off-duty conduct warrants action, determine what is reasonable and fair given the circumstances. The appropriate response should be proportional to the severity of the behavior. A minor indiscretion might warrant a warning, while more serious offenses could result in termination. Whatever action you decide to take, ensure it's consistent with how you've handled similar situations in the past or how you plan to handle similar situations in the future. Possible actions include:
Verbal or Written Warning: For less severe cases, a warning may be sufficient, particularly if this is the first incident.
Suspension: Temporary suspension may be appropriate if the behavior is serious or if you need time to investigate, but does not warrant termination.
Termination: In cases of severe misconduct—especially if it involves illegal activity, discrimination, or harassment—termination may be necessary to protect your business.
Always document your decision-making process and the actions you take. This documentation will be important if the employee challenges your decision or if you need to defend your actions in court. Inconsistency can lead to claims of discrimination or unfair treatment.
5. Communicate with Sensitivity
Work with CPR to develop a script or outline and receive coaching about what you will say to the employee. Approach the conversation with sensitivity while upholding the individual’s dignity – no matter what they did, they are human.
Be clear with the employee about why their off-duty behavior is problematic and how their behavior affects the business. Acknowledge the employee’s right to privacy while explaining the consequences of their actions on the business and the team. If applicable, provide them with a chance to correct their behavior such as offering support through employee assistance programs.
6. Consider the Broader Impact
Check the temperature of your employees after the situation has been resolved. If the incident has become public knowledge or affected other employees, you may need to address the broader workplace. This could involve:
Reiterating your company’s policies on appropriate behavior.
Providing training on appropriate conduct.
Holding a meeting to reinforce your company’s values.
Just be sure to keep the specific details of the matter as confidential as possible to protect both the employee's privacy and your company from potential legal issues.
7. Review Your Policies
Refer to your code of conduct or social media policy during your assessment of the off-duty behavior. If you’re like most small businesses, you may not have these policies yet. Now is an opportunity to establish policies to align with your company’s values and legal requirements. Consult with CPR to ensure your company policies are clear about off-duty conduct and its potential consequences. These policies should also be reviewed and acknowledged by your employees (preferably upon hire).
It’s important that any action you take is consistent and applied fairly to all employees. Remember, each situation is unique and requires careful consideration. While it's important to protect your business, it's equally important to respect your employees' privacy and rights to avoid any legal issues.
Conclusion
Dealing with inappropriate off-duty conduct requires a delicate balance between protecting your business reputation but also respecting your employees’ rights. The best advice is to consult CPR to ensure you’re handling the situation lawfully. Being proactive can help mitigate these situations and serve as a guide for handling an off-duty situation that arises. Contact CPR today to help you!
Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.
