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. Focus on legitimate, job-related impact of employee misconduct, rather than on mere … Generally, what an employee does after work hours is of no concern to his employer, who has no right to institute disciplinary proceedings against an employee unless it can be shown by the employer that it has some interest in the conduct of the employee outside the workplace. Be careful how you obtain information regarding employees’ outside-of-work misconduct. The NFL season has ended. 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. I need product login or other general support. Privacy 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. Liz Sheffield. Inappropriate conduct by employees outside of work has long been a concern for employers. Stay up-to-date on the latest workforce trends and insights for HR leaders: subscribe to our monthly e-newsletter. A case in point involved circumstances whereby an employer directed its employee to cease the sexual harassment of a co-worker outside of the workplace and disciplined the employee when he breached that direction 4. The best approach is to be informed about employer and employee rights and to craft and communicate fair policies that are documented and enforced. Noella Silby, Paralegal, MDC Legal. Our online store for HR apps and more; for customers, partners and developers. Our company’s official dress code is [Business/ Business Casual/ Smart Casual/ Casual.] Question: Should an employer treat harassment between employees that occurred away from work and outside of work hours similarly to harassment in the workplace? If an employee comes to you with a report of off-duty misconduct, instruct the employee not to discuss the information with anyone else, including other employees. Courts have also considered uninvited appearances at the employee’s home and unwanted phone calls to the employee’s personal phone outside work, particularly when those visits or calls were threatening. They argue that genreally membership or participation alone should not be grounds for dismissal or used to prevent people from holding jobs. Generally speaking, an employees’ conduct outside of work is not grounds for dismissal. March 31, 2015 . This is when a strong mission and clearly defined organizational culture becomes paramount. Fast, easy, accurate payroll and tax, so you save time and money. The laws also detail the circumstances under which an employer can restrict or modify policies based on lawful off-duty behavior. Often, these incidents occur as part of an ongoing pattern of harassment that also includes conduct that occurs at the workplace. ADP helps organizations of all types and sizes unlock their potential. And, most people carry digital devices that make it easy to document every activity that takes place inside or outside of work. However, few have taken the time to think about effective and lawful policies that regulate employee behavior after hours and outside the workplace. For example: Whether an employee’s out of hours conduct justifies disciplinary action or termination depends on the circumstances of each case, but the litmus test is whether the conduct is inconsistent with the employment relationship. Don’t just take our word for it. Find payroll and retirement calculators, plus tax and compliance resources. The short answer: maybe. Small, midsized or large, your business has unique needs, from technology to support and everything in between. By: George Bothwell. The media is full of examples: a police officer arrested for drunk driving; an executive caught using racist language; a teacher with an Instagram account full of provocative pictures. Actions outside work which are linked to work, for example, bad behaviour at a workplace function. Now, due to advances in technology (particularly information technology), the expansive reach of social media, and because … And also check the applicable laws on whether the employee has legal protections for political activity if it applies. Access the definitive source for exclusive data-driven insights on today’s working world. Ten or 15 years ago, it was relatively easy for employers — and employees — to draw the line between work hours and after-work hours. Liability. At ADP, we are committed to unlocking potential — not only in our clients and their businesses, but in our people, our communities and society as a whole. An employee code of conduct policy may also be referred to as a conduct in the workplace policy. Tap into a wealth of knowledge designed to simplify complex tasks and encourage strategic decisions across key functions. Attend webinars or find out where and when we can connect at in-person events. We’re reimagining what it means to work, and doing so in profound ways. Thus, some restrictions have been placed on outside employment and the pay received for that work. Tags: an employee who, following a relationship breakup with a work colleague, posts intimate images or sexual videos on social media (an act known as “revenge porn”) may be validly terminated because of the ongoing harm and violation the publication can cause to the victim and the effect it may have on her dealings with their other work colleagues. Sunderland FC’s need to protect its reputation in this case overpowered Johnson’s right … However, the CCMA decided that the criminal case had no bearing on the labour law matter and that, despite the time and place it happened, the employee's misconduct still fell under the employer's jurisdiction. workout clothes.) At ADP, we say that we’re Always Designing for People, starting with our own. See how we help organizations like yours with a wider range of payroll and HR options than any other provider. Learn how we can tackle your industry demands together. Some state constitutions specifically include a right to privacy, which prevents private employers from looking into their employees' off-duty activity. In some situations, employee conduct outside the workplace can be grounds for termination. This diversity gives us a holistic understanding of business workplace and employment law issues, and informs our strategic thinking and solutions for our clients. If the female employee goes to HR or a supervisor sees it and does nothing, the company’s got issues. More frequently, what an employee does outside of the workplace, and outside of work hours, can impact on the employment relationship. Policy for this varies with each employee group. MDC Legal has also acted for unions. When it has a negative impact, employers may be justified in taking disciplinary action for what may have once been considered off-limits private behaviour. In such cases it is likely that this conduct may relied upon in disciplinary proceedings and ultimately to justify a decision to dismiss. The Employee Experience, Anthropology and the Future of Your Workforce, The Myth of Goals: An Honest Observation of What We All Wish Was True, Ask Addi P.: Rethinking Work-Life Balance. As long as you conform with our guidelines above, we don’t have specific expectation… Managing employee behavior outside the workplace may be a concern. Take your organization to the next level with tools and resources that help you work smarter, regardless of your business’s size and goals. Not so long ago, there was a clear line between work and play – between conduct at work and employees’ private lives, with the latter being none of the employer’s business. by July 12, 2016 Talent & Performance, Analysis and Opinion. 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. An employee can be dismissed for misconduct outside the workplace but this cannot happen immediately. Some states (New York, California, Colorado, North Dakota) have passed laws which prohibit discrimination against an employee for participation in legal activities outside work hours. In making monitoring decisions, employers must respect employees’ constitutional, common law, statutory, and sometimes contractual rights to limit monitoring. LONG BEACH—When managing employees' off-duty conduct, HR professionals must navigate a lot of gray areas, said Jennifer Suberlak, an attorney with Pettit Kohn in San Diego. Best Practice Off-duty conduct which has no bearing on employment is unlikely to justify disciplinary action. 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. Do not force an employee to give you his/her Facebook password. Focus on what matters most by outsourcing payroll and HR tasks, or join our PEO. I need Paycheck Protection Program information and support. Employee conduct outside the workplace: When should employers take action? Learn how we can make a difference by joining forces to improve the success of the clients we share. an employee dismissed for social media posts calling his employer’s clients “spastics and junkies” was reinstated (despite his conduct being considered a valid reason for dismissal) because the dismissal was found to be harsh in light of a number of mitigating circumstances, including the employees long history of employment; an employee dismissed following sexually lewd behaviour at a hotel after a staff Christmas party was found to have been validly terminated because, not only because of the lewd conduct as such, but she was not honest with the employer during its investigation, therefore the employer could not be assured of her honesty in the future; an airline employee who purchased drugs on his day off overseas was validly dismissed because of the employer’s continuing responsibility for its crew throughout the pattern of duty; while a criminal offence may not of itself be enough to warrant termination, a public sector employee’s criminal conviction for sexual offences against a minor was found to be a valid reason for termination because the conviction was sufficient to damage the employment relationship and the interests of the employer; an employee stating where they work on their Facebook page could establish the requisite link between employee and employer to justify dismissal for out of hours conduct in making derogatory posts, even if the posts do not relate to their employment; and. 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