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Employment Decisions Based on Off-Duty Conduct: Is Your Company Violating The Law?

Originally published in Employment in the Law - Winter 2012
February 28, 2012

Eddie applies for a position with your company. He meets the necessary qualifications, and you’re ready to hire him, but your assistant conducts a social media background investigation to make sure he’s the right fit for the company. The assistant does not disclose to you any protected information, but tells you about a blog, called "Crazy Eddie’s Adventures," which reveals that Eddie is a smoker, a regular bungee jumper, he has run with the bulls in Pamplona, regularly swims with sharks, and routinely jumps out of airplanes on the weekends. Because you think that Eddie’s smoking and high-risk adventures could result in higher health insurance claims, you decide not to hire Eddie based on economic reasons. Eddie sues the company, and a court determines that your company violated the law.

But the assistant who conducted the online investigation did not reveal any protected information, and you had no way of knowing Eddie’s race, national origin, age, religion, or any other protected characteristic. Thus, your company could not have violated Title VII, the Age Discrimination in Employment Act or any other federal anti-discrimination law, right? So what law has been violated?

Depending on the state, your company could have run afoul of "lifestyle discrimination" or "off-duty conduct" laws that prevent employers from discriminating against employees based on off-duty conduct. In other words, these laws protect employees and applicants like Crazy Eddie who, on their own time, use tobacco or engage in other legal recreational activities.

Currently, approximately 29 states have some type of statutory protection for lifestyle discrimination. In a majority of states, as well as the District of Columbia, employers cannot ban smoking by employees outside of work. In addition, twelve states protect the use of any lawful product off duty, such as alcohol or unhealthy foods.

Below are examples of some of the laws your company may have violated by refusing to hire Eddie:

  • Under South Carolina law, employers cannot take personnel actions based on the use of tobacco products outside of the workplace.

  • Wyoming prohibits employers from requiring, as a condition of employment, that an employee or prospective employee use or refrain from using tobacco products outside the course of his employment, unless it is a bona fide occupational qualification.

  • North Dakota law makes it a discriminatory practice to fail to hire a person or discharge an employee because he participates in a lawful activity off the employer’s premises during nonworking hours, as long as the activity is not in direct conflict with the essential business-related interests of the employer.

  • New York makes it unlawful for an employer to make hiring or firing decisions because of an individual’s legal use of consumable products or legal "recreational activities" outside of work hours, off of the employer’s premises, and without use of the employer’s equipment or other property. The term "recreational activities" is defined to include sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.

Lifestyle discrimination statutes vary considerably in the types of off-duty conduct they protect. A major theme, however, is tobacco use and other legal use of consumable products.

To date, there has not been a published court decision applying any of these statutes to employee social media activities – like Crazy Eddie’s blog. As more applicants and employees join social networking sites and post all kinds of information online, employers have greater access to information regarding what applicants and employees do during their off-duty, personal time. To minimize the risk of legal exposure, employers should know the laws in the states where their employees work. Employers should also create policies that define the type of off-duty conduct that is acceptable and the conduct that is inconsistent with the business interests of the company. Because the application of these statutes to the world of growing social media is still undefined, employers should consult counsel before making decisions based on an employee’s off-duty conduct.

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