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Know the Law: Can Workers Be Disciplined for Off-Duty Contact?

Written by: Jennifer L. Parent

Published in the Union Leader (7/31/2017)

Q: A group of my co-workers and I decided to go out after work last week for drinks and appetizers. My co-worker had a bit too much to drink and sexually propositioned me and kept massaging my shoulders at the bar. I complained to human resources that I found the behavior offensive and unwelcomed. Is there anything HR can do about it as it happened outside of work? 

A: Most companies have employment handbooks that govern the expected conduct of employees within the workplace. When employees violate those policies, employers feel comfortable enforcing the rules and disciplining employees by taking consistent, appropriate measures. The lines start to blur, however, when an employee’s conduct occurs outside the workplace or on the employee’s personal time. So can an employer take action against an employee for activity that occurs outside of work on the employee’s own time? Not surprisingly, the answer is “it depends.” Most employees are employees-at-will and can be terminated at any time with or without cause as long as it is not for an illegal reason. The answer therefore depends on the type of activity involved and whether there are any protections applicable to the employee or privacy rights at issue.

Employers often have policies that regulate off-duty conduct. For example, social media policies may restrict the activity of employees whether the employees are performing work-related tasks or personal matters. There are also company policies that prohibit discriminatory or harassing behavior toward other employees whether inside or outside the workplace.

Employers must carefully consider any action taken after learning of an employee’s alleged conduct. Certain conduct may be protected under various laws. This may arise in an arrest of an employee, for example. Employers need to be careful in any knee-jerk reaction to reading about an employee in the newspaper or hearing about an arrest from a fellow employee. Some states prohibit the use of an arrest as the basis for an adverse employment decision.

Monitoring, and taking action for, an employee’s lawful conduct outside the workplace is more problematic. An employer may not be able to do anything about things like participating in demonstrations or picketing or belonging to a certain organization or group. Employers should look to see if there is any relationship between the conduct at issue and the employee’s job, considering whether the conduct harms the business or puts the business in an unfavorable light.

Before any action is taken in an off-duty situation, the employer should consult with legal counsel. Employers should also consider how reliable the source of information is before taking any immediate action.

In the above situation, your company’s policies may prohibit discriminatory and harassing behavior, including situations in which co-workers socialize outside of work. This would cover behavior based on race, gender, disability or other protected classification. If the conduct is creating a hostile environment and affecting an employee’s ability to work, companies may take appropriate disciplinary action.

Just because your co-worker was off-duty when the conduct occurred does not mean that he is beyond the policies of the company. Human resources should treat your complaint like any other workplace complaint and conduct a prompt and thorough investigation. At the conclusion of the investigation, all the information should be considered, and the company must decide exactly what it believes happened and what appropriate action needs to be taken, if any.

Jennifer L. Parent, chair of the litigation department of McLane Middleton, P.A., can be reached at (603) 628-1360 or jennifer.parent@mclane.com.

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm St., Manchester, NH 03101 or emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.

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