Today, employers have the technological means, and occasionally the inclination, to find out what workers are doing on their own time. However, their right to monitor what you do off the job—and make decisions based on that conduct—is limited. This article explains employees’ privacy rights when it comes to their conduct away from work, as well as specific rules for certain types of private, off-duty activities. (For information on your privacy rights while you’re on the clock, check out Nolo’s Right to Privacy at Work FAQ.)
Privacy Laws and Employees’ Off-Duty Conduct
In the private sector, a number of laws prohibit employers from intruding into their employees’ lives outside of work. Some state constitutions specifically include a right to privacy, which prevents private employers from looking into their employees’ off-duty activity. Some states, including California, have laws prohibiting employers from taking any job-related action based on a worker’s lawful conduct off the job.
Even in those states that don’t provide private workers with a constitutional or statutory right to privacy, it is generally illegal for an employer to intrude unreasonably into the “seclusion” of an employee. This means that physical areas in which you have a reasonable expectation of privacy are off-limits to employers, unless there is a very good reason to intrude. And an employer is never allowed to physically enter your home without consent (even when searching for allegedly stolen property belonging to the employer).
The same balancing approach often applies to private information. Generally speaking, an employer may not inquire or otherwise obtain facts about highly personal aspects of an employee’s private life. For example, an employer may not ask an employee about her sex life with her husband.
Under the National Labor Relations Act (NLRA), it is illegal for an employer to monitor or conduct any surveillance of employee union activities, including off-the-job meetings or gatherings. This rule also applies to any concerted activity (that is, activity undertaken by workers acting together, rather than individually) even if no union is involved, as long as employees are discussing their work conditions or terms of employment. An employer that sends a supervisor to eavesdrop on such meetings, or plants a spy among employees engaged in such conduct, violates the NLRA.
Because drug testing has the potential to reveal an employee’s use of drugs outside of work hours, it has been the subject of much privacy litigation. In general, drug testing is permitted during the job application process, when current employees are performing safety- or security-sensitive work, or when an employee has given an employer some reason to believe that he or she is impaired by drugs at work. (For more information, see our articles on drug testing job applicants and drug testing current employees.)
Nearly half of the states have legalized marijuana for medical purposes, at least for serious medical conditions. These “medical marijuana” or “compassionate use” laws typically require the user to obtain a doctor’s authorization and register with the state for a medical marijuana card. If a patient meets the criteria, he or she cannot be prosecuted under state law for crimes relating to the use, possession, or cultivation of a certain amount of marijuana. Federal drug laws still apply, however.
About a dozen states specifically protect these employees from discrimination based solely on the fact that they are registered medical marijuana cardholders or that they test positive for marijuana on a drug test. In these states, employers may not fire employees for off-duty medical marijuana use, as long as employees are not showing up to work impaired or under the influence. However, other states with medical marijuana laws either do not address employment rights or specifically allow employers to fire employees for off-duty marijuana use. For example, courts in California, Oregon, and Colorado have upheld an employer’s right to fire an employee for purely off-duty use with a valid medical marijuana card. (To learn more, including the rules on recreational marijuana, see our article on marijuana use and employment.)
Political and Religious Activities and Beliefs
Federal antidiscrimination laws that apply to private employment do not protect political beliefs or affiliations. However, if your political activities are related to another protected characteristic—such as race or religion—it might be protected on those grounds. (See employment discrimination in your state to learn more.)
Some states prohibit employers from discriminating against employees based on political affiliation, beliefs, or activities. Other states protect only certain types of political activities. For example, it’s illegal in some states for an employer to take an adverse action against an employee for voting, for not voting, or for voting for a particular candidate in an election.
Generally speaking, employers have the right to limit after-hours work that is in conflict with the employer’s own business. For instance, your employer can typically fire you for working for a competitor or for starting your own competing business on the side. In some states, an employer might be able to institute a total ban on moonlighting. However, in other states, employers may prohibit employees from working a second job only if it affects the employee’s job performance or creates a conflict with the employer’s business interests. Because the rules vary significantly from state to state, it’s best to consult with a local lawyer if you have questions about your right to work a second job.
Many states make it illegal for employers to discriminate on the basis of marital status. Therefore, employers may not keep track of whether their employees are single, married, or divorced, except as may be necessary for providing certain benefits such as health insurance. However, tricky issues can arise when, for example, one spouse applies for a position in which he or she would supervise the other, or an applicant’s spouse works for the hiring company’s major competitor. To find out whether your state prohibits marital status discrimination, and how its law might apply to situations like these, contact your state fair employment practices agency.
Illegal activities are not protected under state off-duty conduct laws. However, many states do place some limitations on when employers can ask about criminal records or take adverse employment actions based on them. For example, many states prohibit employers from asking about arrests that did not lead to convictions. However, employers are generally allowed to ask current employees about pending charges and convictions. To learn more, see our state articles on arrest and conviction records in employment.
Originally posted here by Lisa Guerin, J.D.