Can an employee be fired for conduct outside the office or in his or her personal life?

With the recent advent of “lifestyle discrimination” protection, the answer is increasingly becoming “no”.  Lifestyle discrimination laws include various statutes enacted across the country spanning topics from tobacco use to personal morality.  While exceptions exist, the law has generally grown more hostile for employers that regulate conduct outside the office.

At common law, the at-will employment doctrine enabled employers to terminate employees for any reason or no reason.  If an employer were to find out about employee actions outside the office that were not to its liking, the employer could take steps to stop such conduct or end the employment relationship.  Even today, employers often act when an employee’s personal behavior gains unwanted publicity, such as arrests for drunk driving or other criminal conduct.

With regard to employee health, employer wellness plans target physical issues unrelated to success in the workplace, such as obesity and alcohol and tobacco use.  Several federal statutes limit the scope of employer wellness plans and the actions employers can take against employees.  The Health Insurance Portability and Accountability Act mandates that wellness plans not directly penalize employees for certain health conditions and failure to remedy them.  For example, such plans cannot require diabetic employees to reduce their blood glucose levels, although they can provide some premium benefits for healthy conduct.  The Americans with Disabilities Act protects employees who suffer from alcoholism or morbid obesity from employment discrimination.  Many states have laws protecting employees who smoke outside the office.

The National Labor Relations Act has recently expanded employees’ ability to post complaints on social media, even regarding their own workplaces and terms and conditions of employment.  This prevents employers from taking too strict a view of employee free-time postings that may reflect badly on the office, provided one can legitimately characterize the postings as relating to broader workplace issues.

Nevertheless, the law regarding “lifestyle discrimination” and the intersection between management rights and employee privacy remain in flux.  Employees should know that their behavior outside the workplace may affect their prospects inside.  Employers should know that they still have the ability to protect their interests against untoward free-time conduct, with the advice of counsel to avoid recent legal limitations.

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