As an employee, you have many responsibilities. As a result, you treasure the time you have off to enjoy your life with family and friends doing the things you love to do. A nice vacation, a golf outing, or maybe just a day at home relaxing are all activities many employees look forward to during the year. But can an employer monitor your activities and penalize you for legal activities outside the office? The answer is more complex than you would think.
Here’s a section of my book The Employee Rights Handbook. Get informed and know your rights!
Legal Activities Off-Premises
In some states a private employer cannot discipline, fail to promote, or fire an employee because the company does not agree with the employee’s comments on matters of public concern. A majority of states have laws that prohibit employers from influencing how their employees vote. Attempts to regulate off-duty legal conduct are also sanctioned.
Most states have laws making it illegal for companies to fire workers who participate in legally permissible political activities, recreational activities, or the legal use of consumable products before or after working hours. Political activities include running for public office, campaigning for a candidate, and participating in fundraising activities for a candidate or political party. Those activities may be protected if they are legal and occur on the employee’s own time, off company premises, and without the use of employer property or equipment.
Recreational activities are defined as any lawful leisure time activities for which the employee receives no compensation. The definition of consumable products even protects the rights of people who smoke cigarettes or drink alcohol before and after working hours and off the company’s premises.
The right not to be demoted, retaliated against, or fired for engaging in these legally permitted activities generally depends on state law. To date, many states have passed laws making it illegal to be fired from a job because you are a smoker and smoke off-premises; the trend is for more states to follow. For example, in New York, employers cannot discriminate in hiring, promotion, and other terms of employment due to off-duty activities in four specific categories: political activities, use of a consumable product, recreational activities, and union membership or exercise of any rights granted under federal or state law (such as voting).
In the vast majority of states with such laws, it is illegal to refuse to hire smokers. It may also be illegal to discriminate against smokers by charging higher insurance premiums unless the company can demonstrate a valid business reason, such as higher costs. However, employees who smoke off-duty must still comply with existing laws and ordinances prohibiting smoking on-premises, such as only in designated areas. And just because it may be legal to drink alcohol off-premises late into the night does not give you the right to stagger into work drunk the next morning.
Employers who violate state law in this area are generally subject to a lawsuit by their state’s attorney general seeking to restrain or enjoin the continuance of the alleged unlawful conduct. Hefty penalties are provided in some of these laws. Additionally, individuals may commence their own lawsuits and recover monetary damages and other forms of relief, including attorney fees, under the laws of many states.
Contact a representative at the American Civil Liberties Union in New York City for advice and guidance if you are being pressured to stop asserting legal political activities, affiliations, or political action. This includes banding together with other workers to protest poor working conditions.
Since some states do not have specific laws protecting employees who engage in political activity and other activities, and the laws vary, always consult with counsel and review applicable state law before engaging in questionable activities or taking action to protect such activities.
Regarding off-duty surveillance, some states prohibit employers from gathering and maintaining information regarding an employee’s political, religious, and other non-business activities. In these states, employees and former employees can inspect their personnel file for the purpose of discovering whether any such information exists. If their file contains such prohibited information, the employer may be liable for damages, court costs, attorney fees, and fines.
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