What Actions, if Any, Can a California Company take in Response to Reported Off-Duty Employee Conduct?

You have reported that a supervisor at your Company has heard secondhand regarding an employee’s off-duty conduct from several employees.  What is the Company permitted to do?  

It depends on the alleged conduct, applicable state and federal laws, Company policies and a number of other factors. Consider starting with answering the following questions:

  • Is the conduct lawful or involve potentially illegal conduct? 
  • Is there an applicable state law that protects the employee’s off-duty conduct? 
  • What is the risk/cost the employer is seeking to mitigate?
  • Is the employer willing to apply the policy consistently? What effect will the policy have on employee morale?

If the alleged off-duty conduct involves cyber-bullying or unwelcome sexual conduct, for example, then the Company will be legally obligated to investigate it.  If the off-duty conduct involves employees venting about the terms and conditions of employment on their personally-owned social media accounts, that conduct may be protected under the National Labor Relations Act, that prohibits taking adverse employment actions based on such conduct. 

Other protected areas that require further analysis to determine how to proceed involve: union activity, drug, alcohol or marijuana use, political and religious activities and beliefs, off-duty arrests/violence, and moonlighting.

Lisa Sherman
California Labor & Employment Attorney