The question of employee misconduct outside of the workplace posed little concern for employers before the advent of technology in our personal lives.

However, the increasing move towards remote work, rapid communication means and social media have enabled employers and employees alike greater insight into the lives of their co-workers and bosses outside the office’s physical location.

This has blurred the previously distinct lines between the actions of employees at work and outside of it, creating room for situations that bring up challenging questions regarding privacy policies and an employer’s authority over off-duty misconduct.

When does an employer get a say about off-duty misconduct?

At work, an employer can monitor employees to a certain extent and actively prevent incidents from potentially harming the organisation. Outside of the workplace, this ability is severely limited and the employee’s conduct is protected by their right to privacy.

The only scenario in which an employer can intervene is when they believe that certain conduct is directly linked to the organisation and has the potential for harm. Hence, an employer must be very careful in deciding whether certain behaviour warrants action or otherwise risk encroaching on an employee’s right to freedom and privacy.

The following are considerations that one must ensure to make as an employer when deciding whether there is a sufficient connection between off-duty misconduct and any harm to the company:

  • The duties and responsibilities of the employee
  • The impact on the company’s image
  • Any losses made by the organisation
  • The employee’s previous history with the company and any record of similar conduct
  • The nature of the conduct

When can an employer seek disciplinary action for off-duty misconduct?

Seeking to discipline an employee for off-duty misconduct can be tricky because an organisation must protect its brand reputation whilst also respecting its employees’ right to free speech and privacy.

Laws about wrongful termination, privacy, and free speech also vary depending on where you live. Seeking legal counsel and reviewing company policies in such a scenario can be very helpful in guiding the course of action you ultimately take. 

Despite how tricky it can be to navigate off-duty misconduct, an employer does have certain rights and an employee is bound to take some responsibility for their behaviour in certain situations. Potential reasons for an employer to validly seek discipline include:

1. Any off-duty misconduct that is against the law

Depending on the laws of the state they’re in, an employer can fire an individual if they have been charged with a crime. However, this does depend on the nature of the offence and any relevance it may have with the person’s role within the organisation. For example, if an employee whose primary role is working with money is charged with theft then the employer may have reasonable grounds to seek action. If however, the employee deals with money and is charged with drunk driving, the same may not apply.

2. The off-duty misconduct of the employee has created hostility in the workplace

In some cases, a hostile work environment can develop from behaviour that occurred outside of work. For example, unwanted and repeated sexual advances outside of work hours that then lead to tension and hostility in the workplace.

3. The employee cannot fulfil their required duties as a consequence of their off-duty misconduct

In some cases, an employee’s off-duty behaviour may directly impact their performance on the job and this can give companies just cause for disciplining the employee for that behaviour. For example, if a truck driver’s license gets suspended for driving under the influence while he’s off-duty, his ability to perform his job is undoubtedly impacted.

4. The employee’s off-duty misconduct has damaged the company’s public image and functioning

An employee’s actions and opinions about the company matter even outside of work. Through social media, even a single employee can cause the brand’s reputation to suffer by voicing negative opinions or behaving in a manner that sparks controversy. In this particular situation, it can be tricky to see where the line is between dissatisfied comments about the workplace vs harm to the company’s ability to conduct business.

5. The conduct makes it difficult for employers to fulfil their duties

If an employee’s off-conduct actions make it hard for the employer to efficiently manage its work and direct its workforce, they may also be liable for discipline or dismissal.

Off-duty Misconduct

Importance of an off-duty employee misconduct policy

Having a specific policy to refer to when dealing with any potential misconduct means there are procedures in place that allow decisions to be made that best align with the company’s interests. The policy would be best made in counsel with legal advisors, federal and state laws as well as existing company policies regarding misconduct and disciplinary procedures.

Generally speaking, this area is a murky one within existing legal guidelines and an employer has to tread lightly. This holds especially true if you are considering termination.- make sure you are certain that the employee’s actions have affected the business or you may risk even greater harm through lawsuits and greater damage to your reputation. If company policies are clear, fair, and applied consistently, employees will be able to meet expectations both inside and outside the workplace.

Tips for writing an effective off-duty misconduct policy:

  • Keep the focus on how the company has been impacted: The central focus of the policy should be on how the conduct is impacting the company in a negative manner. Make sure that the policy is not instructing employees on what they can or can’t do in their free time and focuses instead on how their actions are influencing business outcomes.
  • Make sure it aligns with your other policies: The policy should align with all other company guidelines in terms of what it expects from its employee’s behaviours and actions within the actual workplace. The level and type of discipline should also be similar to ensure that there is consistency across the board to avoid confusion about what is required.
  • Be specific in your policy guidelines: Off-duty misconduct is already a tricky grey area so making ensuring that the guidelines are specific to certain actions and behaviours will make carrying out the policy to be far more achievable. Having specificity will also help communicate the requirements more effectively and limit any vagueness about what is being said.
  • Make sure you communicate your policy effectively to your employees: Once you’ve established your policy, it’s important to communicate it to your employees and educate them accordingly. The policy should be clear in informing them what type of off-duty conduct actually breaches the policy and what the consequences could potentially be.

To conclude, off-duty misconduct can be incredibly damaging to a company’s reputation, brand and objectives. Having a policy in place to ensure that the organisation is protected whilst also maintaining the employee’s right to free expression is important for the longevity and health of the company.