An employee discipline policy helps address misconduct that takes place during work hours — but what about activities that occur outside of work? Can you legally terminate an employee based on conduct that takes place outside the workplace? The short answer: maybe. It's a gray area that depends on which law applies, what the conduct involves, how it affects the employer, and a careful analysis of the risks.

Blurred Lines

Ten or 15 years ago, it was relatively easy for employers — and employees — to draw the line between work hours and after-work hours. Now that line has become blurred, if not obliterated. In the age of social media and always on communications, the line between personal and professional lives is often difficult to distinguish.

Most of today's employees have at least one, if not multiple, social media accounts. And, most people carry digital devices that make it easy to document every activity that takes place inside or outside of work. This allows employees to record — or be recorded — doing whatever they do outside of work.

"There is no longer the existence of a personal persona and a professional persona because social media has so intertwined everything," notes HR Dive. "Back ten years ago, you punch the time clock, you go home and no one knows what you did at everyone knows what you do 24/7 because you broadcast it."

Deciding Whether to Terminate Someone

The truth is there are numerous groups and personal activities that employees participate in outside of work — some of those may align with your ideals and beliefs while others may not. Employment experts caution against terminating an employee simply because you don't agree with their behavior or how they spend their time outside of work. They argue that genreally membership or participation alone should not be grounds for dismissal or used to prevent people from holding jobs.

This is why it's important for HR leaders to make sure they understand the various federal, state and local laws that protect off-duty conduct and privacy. Some states have off-duty conduct laws that prohibit adverse action against an employee for specific lawful activities such as drinking alcohol or using tobacco. Other states, such as California, have more comprehensive laws that protect against adverse action for most lawful conduct while off duty. And also check the applicable laws on whether the employee has legal protections for political activity if it applies.

Employers must also be careful that any dicipline decisions don't infringe upon civil rights with perceived or actual discrimination based on age, national origin, race, ethnic background, gender, religious beliefs or pregnancy status.

In addition to legal protections, it's also important to consider the context of the conduct, how closely it is connected to the workplace or company, and what effect, if any, the conduct has on the employer's reputation and the workplace itself.

Communicate Concerns Outside of Work Compliance

HR leaders have a responsibility to ensure that activities outside of work don't negatively impact the workplace, while at the same time helping employees protect their professionalism. When it comes to creating an employee discipline policy and codes of conduct, HR must work to communicate what is considered acceptable behavior and what isn't.

This is when a strong mission and clearly defined organizational culture becomes paramount. You want employees to understand what your organization tolerates, condones and accepts, whether in or out of the workplace. Draft clear policies related to conduct while at work as well as off-duty conduct and be sure to outline the related disciplinary procedures. Examples of policies related to conduct outside the workplace may include prohibiting:

-Conflicts of interest

-Use of business property for activities outside of work

-Display of business logo or clothing during off-duty activities

Some organizations also opt to state in the employee handbook that the organization reserves the right to enforce appropriate disciplinary action if an employee's off-duty actions tarnish the organization image or otherwise negatively impact the workplace.

It's not always easy to decide what to do in situations involving off-duty conduct that crosses the line, especially in today's digital world. The best approach is to be informed about employer and employee rights and to craft and communicate fair policies that are documented and enforced.

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Tags: Privacy Liability