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Monitoring Off Duty Conduct: How Far Can You Go?

Posted by Scott Fiore on October 21, 2011

by Jeannine Hohman, HR Strategist

Employers are well aware they have a right to monitor their employees’ work e-mail, internet use, telephone use, etc. and often have policies or handbook statements to support this action.  However, when it comes to policing off duty conduct, how far can employers really go?

Today employers certainly have access to a wealth of information through social media and other internet sites.  As we’ve discussed before, many employers have turned to using social media as a recruitment tool.  However, accessing such sites Facebook, MySpace, LinkedIn, Twitter and YouTube, can provide employers with TMI (too much information) about what their employees are doing outside of work.  Not only that, but people talk.  For example, a manager may find out that one of their key sales representatives has a bottle-of-scotch-a-day drinking habit after work.  Can the manager discipline this employee or try to change their behavior?  Not likely without getting hit with some type of discrimination or privacy invasion law suit.

Most states, including Pennsylvania, prohibit employers from discriminating against employees for participating in lawful conduct outside of work.  However, if an employee’s off-duty conduct or activities put your company in legal or financial trouble, most likely, the courts will be more willing to uphold your decision.  An example of this would be if your Chief Accountant is arrested for embezzling church funds.  This would lead the employer to question whether this individual has or will embezzle funds from the organization.  Since the off-duty conduct of embezzlement could harm the company in both reputation and potential financial loss, the courts may support the employer’s decision of termination.

It’s important to focus on the off-duty behavior’s effect on actual job performance not just the off-duty behavior.  If an employee is in prison for committing an unlawful act, they will not be able to report to work.  Depending on the employer’s policy regarding absence, this employee could be terminated for no show/no call, job abandonment, etc.

If you are ever faced with making a decision to discipline an employee for off-duty behavior, the best advice is to consult an attorney.

Click here to download our White Paper titled Employee Monitoring:  How far is too far?