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01.20.2016

Regulating and monitoring off-duty employee behavior

Generally, what employees do when not working is their own business. Some off-the-clock behavior, however, can affect either an employee’s ability to work or a business’ public image. Some employers also are concerned that past behavior may indicate future job performance, so a history of bad credit or a criminal record may be undesirable in a potential candidate.

When and how employers can monitor their employees outside of work hours varies by state. In Indiana, the balance between protecting employee rights and an employer’s legitimate business interest in monitoring employees can be a delicate balancing act. Below is a brief overview of common issues facing employers and employees in the state when it comes to worker privacy.

Criminal behavior

At-will employees are terminable for any reason, or none at all, provided it the firing was not because of the employee’s protected class. If the actions involve criminal activity, and if that criminal activity affects an employee’s ability to perform essential job functions, the decision to terminate is relatively safe for the employer. An example would be a commercial driver who is convicted of driving under the influence, even if the arrest occurred outside of work hours.

However, employers who exclude from their hiring policies anyone with a criminal record can run afoul of the Equal Employment Opportunity Commission. The EEOC has ruled that employers who exclude all applicants based on criminal record, if the arrest or conviction is not directly related to job function, can violate Title VII of the Civil Rights Act.

Privacy rights and off-duty conduct

Even less clear is when employers can take adverse action for lawful activity performed by employees outside of work. Government employees are protected under the U.S. Constitution from certain monitoring behavior. Those protections do not necessarily extend to private sector employees, however. At the state level, only California constitutionally protects private sector employees from data monitoring.

Federal protections do exist, however, such as the Electronic Communications Privacy Act, the Stored Communication Act, the Computer Fraud and Abuse Act, and the Fair Credit Reporting Act, all of which give applicants and employees certain rights. Under the FCRA, for example, employers cannot conduct background checks without obtaining consent from the employee or applicant, and if an adverse decision is made due to information obtained from the background check, the employee or applicant must be informed of that fact.

Monitoring employer-provided email and phone communications is generally legal. More uncertain is the ability to take adverse action against an employee because of social media use outside of work. The National Labor Relations Board has recently upheld certain employee rights to discuss “protected concerted activity” on Facebook, for example.

An attorney can help employers comply with state and federal protections

It is understandable that employers would like to monitor certain employee behavior even outside of work. A disgruntled employee who complains publicly about an employer can lead to very negative consequences. Employee behavior that brings a negative image on the business can be harmful to brand and standing in the community. However, employers must be careful not to violate any of the numerous state and federal protections that exist for employee privacy rights.

The employment law attorneys at Carson can help employers create a comprehensive employee handbook that sets employee expectations while complying with all relevant employment laws. If adverse action must be taken against an employee, consulting with an attorney first can ensure that there is no legal basis for subsequent litigation. The experienced attorneys at Carson can also help employers defend against alleged violations of state and federal employment laws.