When to Worry About an Employee’s Outside-of-Work Actions

For employers, the events of the past year have been a great accelerator. Workplace changes that may have otherwise taken years to evolve have occurred quickly. One example is remote work. Many employees who would not have seriously considered working remotely had to pivot and are now comfortably ensconced in their home offices.

One risk to having employees working from home, however, is that they have much more freedom in terms of their behavior because they are no longer subject to the rules and norms of working in an office or other facility. Of course, this risk existed before the pandemic ― off-site or off-the-clock workers have long presented a threat of behaving in a manner that reflects poorly on their employers.

So, the question is: When should you worry about an employee’s actions outside of the workplace?

Various Circumstances
What your employees are doing when not at work can be a matter of legitimate concern and possibly warrant an adverse employment action (such as suspension or termination) under certain circumstances.

One example is when there is a relationship between the misbehavior and the employee’s job performance (or the job performance of others). In fact, in this type of situation, you could put yourself at liability risk if you do not act because of the potential negative impact on the rest of your staff and others.

For instance, say an employee who drives other employees or customers in the normal course of his or her job is convicted of driving while intoxicated. There are many other, additional causes for concern — such as sexual harassment or involvement in a hate crime.

Another circumstance is a behavior or action that could damage your organization’s reputation. The extent of the damage will likely vary according to the stature of the individual. A newly hired, entry-level employee’s notorious (but not necessarily criminal) after-hours actions would probably cause less reputational harm than those of a high-level executive.

If you do decide to discipline or terminate an employee for unbecoming behavior, you will need to be able to show the harm caused — perhaps you have lost customers or had other key employees quit.

The Gig Economy
The COVID-19 pandemic has also accelerated the ‘gig economy.’ It has never been easier for employees to pick up a ‘side hustle’ doing freelance work in a variety of capacities. Some workers also may look for opportunities to moonlight for competitors.

Generally, you are within your rights to establish and enforce a policy barring employees from working for or as competitors on the side. Whether you can bar an employee from taking a second job as a freelancer depends on whether you have an express or implied employment contract as well as other factors.

Substantial Impact
An employee’s off-site or off-work actions can have a substantial impact on your reputation and financial solvency. First and foremost, consult an experienced employment attorney on this issue before taking any actions. Contact us for help managing your workforce in a financially sound manner.

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