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Employee Privacy during off-Work Hours

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Can I Be Fired or Disciplined at Work for Off-Duty Conduct?

The answer to this question can be somewhat complicated. There are a number of protections provided for individuals’ right to privacy from their employers during their off-duty hours. Both the U.S. Constitution and some state constitutions have been interpreted as including a right to privacy.

All states have laws that protect the privacy of individuals, and some states have laws that specifically say that an employer cannot look into the lawful private conduct of employees during off-work hours.

This means that not only do state laws forbid an employer from entering an employee's house, or tracking their movements through wearable technology without the employee's permission, but that an employer cannot even ask an employee about his personal life unless the employee brings it up first.

What Non-Work-Related Activities are Protected?

Before checking the law, review any employee handbook or other stated policies to determine what your employer considers permissible.

There are state and federal laws that protect certain non-work related activities, as well as certain beliefs and other aspects of your personal life:

  • Religious/Political Activities: Religious freedom is a right guaranteed by the U.S. Constitution, and an employer cannot inquire about an employee's religious or political beliefs or activities.
    • However, an employee cannot just come into work preaching his beliefs and harassing his fellow employees; in that type of situation, the employer can take disciplinary action. Political beliefs are not specifically protected, unless they raise another protected issue (such as religiously motivated political beliefs).
  • Unions: An employer cannot spy on employees who are trying to form a union or who are in a union and are conduction union-related activities.
  • Marital Status: This can be a tricky area. Generally, an employer cannot inquire about your marital status, and especially cannot inquire about anything really personal, such as your sex life.
    • However, when it comes to distributing benefits, you may be required to inform your employer as to your marital status inasmuch that your status impacts the benefits that you are eligible for (for instance, many states provide health insurance benefits to their employees’ spouses, but not to their unmarried partner).
    • In addition, your employer may legally decide to terminate you or not hire you if your spouse is working for a rival company, as it may put privacy of the company's trade secrets at risk.
  • Moonlighting: For the most part, there is nothing wrong with an employee working two jobs. However, if you are working for the competition, your employer may have the right to terminate your employment. This is particularly the case if you signed a non-compete agreement with your employer.
  • Drug Testing: Employers may generally test for drugs during the hiring process. One employed, employees may be tested if they show signs of intoxication or other behavior that leads the employer to suspect drug use.
    • Regarding marijuana usage, this is slightly more complicated, as marijuana use has been made legal in some states. However, even in those states, an employer may still fire an employee for testing positive for marijuana, because marijuana is still prohibited at the federal level, unless the state has a specific law about marijuana use discrimination (like marijuana for medical benefits). Of course, it is still unacceptable to show up to work impaired.
  • Illegal Conduct: Generally, an employer cannot terminate an employee based on illegal conduct outside of work. The exception to this is if the employee's illegal conduct interferes with his work. An employer may inquire about a potential employee’s criminal record during the hiring process. Many employment applications include questions about the potential employee’s criminal record.

Should I Contact an Employment Lawyer?

First, you will probably want to try to resolve the conflict within the workplace by means of whatever procedure is set out in your employee handbook for filing a complaint. This will most likely include contacting HR and letting your supervisor (or the next higher up employee) know about the conflict.

If that does not work, you may want to consult a local employment lawyer. Your attorney can advise you of your rights and let you know if you would be entitled to any damages in a lawsuit against your employer.

Photo of page author Katie Hamblen

, LegalMatch Legal Writer

Last Modified: 07-31-2018 11:02 PM PDT

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