How to Address Off-the-Clock Misconduct

Many employers mistakenly assume that an employee who engages in misconduct while “off-the-clock” or away from company premises is beyond the employer’s reach. However, in many cases, employers can and should respond, especially when the conduct violates company policies such as anti-harassment or workplace violence, or when the conduct negatively impacts business relationships or your operations.

For example, if your off-duty server visits your restaurant as a patron and allegedly threatens one of your employees, the company can and should investigate the incident and take corrective action as appropriate. As another example, if your employees attend a work conference and after dinner one of your employees gets drunk and sexually harasses their coworker, the company still has a legal duty to respond once it learns of the incident.

Don’t Turn a Blind Eye

A recent case, Kruitbosch v. Bakersfield Recovery Services, serves as a cautionary tale for employers. The plaintiff, Kruitbosch, alleged that while he was out on a leave of absence, one of his coworkers made numerous unwelcome and vulgar sexual advances and showed up at Kruitbosch’s home uninvited. Kruitbosch immediately complained upon his return to work, but HR told him there was nothing that could be done and mocked his concerns.

The court found that the company was liable for failing to take appropriate corrective action in response to Kruitbosch’s complaint.  The case serves as a reminder that oftentimes, there is still an obligation in California to investigate misconduct that is off-site/off-duty and take corrective action.

Important Areas That are Off Limits to Employers

Keep in mind that while employers have discretion to address off-duty misconduct, there are areas that are “off limits.” Employers should be careful not to take action against an employee just because they disagree with an employee’s personal choices outside of work that do not amount to a policy violation.

Below are important employee protections to be aware of:

Lawful Off-Duty Conduct and Right to Privacy

Under California Labor Code section 96(k), employers may not refuse to hire, or demote, suspend, or discharge an employee for engaging in lawful conduct occurring during nonworking hours and away from the employer’s premises. Examples may include legally consuming alcohol, smoking, hunting, or having a second job when it does not pose a conflict of interest or interfere with work.

Cannabis Protections

In California, employers cannot discriminate against an employee or applicant for using cannabis while off the job and away from the workplace, subject to very narrow exceptions.

While you may enforce a zero-tolerance drug/alcohol policy and prohibit employees from bringing cannabis to the worksite or showing up to work under the influence, most employees are protected from any negative employment consequences for using it in their personal time and away from work.

Protected Concerted Activity

Under the federal National Labor Relations Act, employees have a right to act together to address workplace grievances or improve the terms and conditions of employment. For example, this means that employees are often protected when they talk negatively about management, or act together to address pay, scheduling, safety issues, or unionization efforts. This can include when employees post negative opinions about their employer on social media when there is an intention to involve other employees and act together.

Political Activities  

California employers cannot attempt to coerce or control the political activities of their employees. Notably, Labor Code sections 1101 and 1102 prohibit employers from making, adopting, or enforcing any rule or policy:

• Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office;
• Controlling or directing, or tending to control or direct the political activities or affiliations of employees; or
• Using the threat of job loss to coerce, influence, or attempt to coerce or influence employees to take or refrain from any particular political activity.

Arrests Not Resulting in Conviction

Employers also need to be careful not to take adverse action against an employee for an arrest not resulting in a conviction. Labor Code Section 432.7(a) states that no employer shall “utilize, as a factor in determining any condition of employment including hiring, promotion, termination… any record of arrest or detention that did not result in conviction.”

Remember, an arrest is an accusation, and if you learn your employee was arrested outside of work, you should not terminate them based on the fact that an arrest occurred.

However, you may be able to conduct your own investigation into the underlying conduct and determine whether the conduct likely occurred and whether it was a violation of policy. As a practical matter, this may be difficult while an employee is out on arrest, so it is often recommended to place the employee on a leave of absence while the employer gathers more information. Given the legal nuances, it is also highly recommended to consult legal counsel.

Additionally, employers may be able to apply attendance policies—like no call, no show—for employees who fail to report to work due to their arrest, as you would with any other employee violating your attendance policies. In that case, you may be able to discipline or terminate an employee for the attendance issue, rather than the arrest itself.

Important Note on Social Media

In addition to the above, when investigating off-duty conduct, note that California limits an employer’s access to employees’ social media accounts. Specifically, employers are prohibited from requiring or requesting that applicants or employees disclose their social media accounts’ usernames/passwords, access social media in the employer’s presence, or divulge information related to their social media accounts, such as Facebook, LinkedIn, Instagram, etc.

Off-duty conduct issues in California are nuanced. If you need additional support navigating the murky waters, CEA can take you from HR confusion to HR confidence. Learn more about membership here.