Calling 2020 a year of substantial change would be a wild understatement.
We grappled with a pandemic, protests and hotly-contested elections.
This year of change caused many individuals to reevaluate their core values.
Employers, too, have been revisiting and even revising their companies’ core values.
Established core values help employers make decisions about long-term company goals and employment. They give employers benchmarks to determine whether a proposed action or policy fits in with “who the company is” or “the company’s culture.”
In this regard, employers and employees are largely familiar with employment codes of conduct and employment handbooks. It is generally accepted that employers can – and should – use such documents and policies to set expectations for employee behavior while at work.
But can these policies extend beyond waking hours to apply when employees are “off the clock?”
As always, it depends.
Employers, of course, cannot dictate all aspects of employees’ non-work behavior. But employers may legally govern certain employee off-duty activities – a common example is a “drug free” workplace policy. On the other hand, a blanket prohibition of alcohol consumption outside of work may be illegal in states allowing its consumption by those over a certain age.
And as suggested by Lauren Maddente’s Page 1 article, “Your Job Applicant Has a Record. Now What?,” some non-work conduct including that which leads to arrests and convictions, might not be used as a basis for discipline unless it is substantially tied to an employee’s duties.
More generalized off-duty conduct by employees can potentially trigger an employer’s less-defined core values such as, for example, integrity, inclusivity, respect and fairness.
This is particularly true given the expanding use of social media to criticize, disparage and troll other users. Even aside from social media, individuals’ off-duty conduct is increasingly coming under scrutiny. Cell phones, with their cameras, are seemingly everywhere, ready to catch any perceived inappropriate statement or action. Once videos go viral, public pressure may be placed on employers to take disciplinary actions against employees, irrespective of their employer handbook policies.
Employers considering policies which could police non-work conduct should act carefully and deliberately, to avoid restricting an employee’s free speech or other rights.
Any policy, of course, should be clearly disclosed to all employees. An employer issuing a code of conduct or employment handbook addressing off-duty conduct should ensure that the policy is specific, reasonable, explainable, nondiscriminatory, and tied to the employer’s reputational or employment needs. This is true even for at-will employees. At-will employees can be terminated for any reason or no reason, but not for a discriminatory reason.
In all this, reasonableness should be the watchword.
Even employers with established codes of conduct or handbooks, governing aspects of employees’ off-duty conduct, should “pick their battles” in enforcing them. What the employer views as a reasonable regulation may be viewed by an employee as an unreasonable intrusion unrelated to employment duties.
This is a complicated area. It has been made even more complicated over the past year by the increased stresses placed on everyone, employers and employees alike.
If you are revisiting your company’s code of conduct or employee handbook, FOS can guide you through the process.
