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In recent months, employers across the country have received attention for expanding their control over their employees’ activities that take place outside the workplace. Although employer limitations on off-duty actions are nothing new, the spotlight of public scrutiny is now shining on policies and practices that appear to exceed those choices that the public perceives employers have a right to control. Employers who base decisions on such policies and practices can significantly increase their exposure to litigation. That’s why C-level executives should engage in detailed cost-benefit analyses before implementing policies and practices limiting employees’ rights to engage in certain off-worksite activities. Some employer control of off-duty activity by employees is standard business practice. Many employers have longstanding anti-moonlighting and anti-fraternization policies, because they understand that certain off-duty activities and interactions between and by employees can reduce productivity, increase possibilities of conflicts of interest and even create liability for illegal harassment. However, many employers are now seeking to control a broader spectrum of off-duty activities through employment policies. This issue, which human resources professionals call “lifestyle discrimination,” includes everything from off-duty smoking or political activity bans to taking adverse action against employees who engage in off-duty activities that could embarrass their employers. Federal laws generally do not protect private-sector employees from such lifestyle discrimination, so state laws govern employers’rights to control such aspects of employees’ lives. For Texas employers, the playing field is fairly open for employers in terms of which policies the law specifically prohibits. However, employees outraged by policies that smack of Big Brother may choose to assert creative legal arguments in an effort to obtain relief. Moreover, beyond the purely legal considerations, such policies have other potential impacts. Here are some of the reasons employers typically implement such polices, as well as some of the potential liabilities such policies could create. Health concerns: Concerns about employee health sometimes prompt employers to adopt policies governing off-duty behavior. For example, a Michigan employer adopted a policy of not employing smokers, allowed current employees 15 months to quit smoking, offered smoking cessation assistance and ultimately terminated employees who refused to take a test proving they were nicotine-free. This employer took these actions out of concerns for employee health and costs –health insurance, absenteeism and turnover — which could represent potential liability for the employer. While no Texas law specifically protects employees from adverse employment actions because they smoke, terminating employees who engage in health-risking behaviors (smoking, drinking or overeating) to reduce potential health insurance costs attributable to that employee could lead to liability under the Employee Retirement Income Security Act of 1974 (ERISA) or the Americans With Disabilities Act (ADA). Moreover, such actions could be perceived as overly invasive in the eyes of employees and the public. Public image concerns: Other off-duty behaviors that, although legal, can cause concern to employers include activities that might cast the employer in a negative light. These can range from extreme political activities to conduct that could be viewed as immoral — indulging in extramarital affairs or moonlighting as an adult dancer — to some forms of online communication such as blogging. Texas law does not protect employees from termination for such activities specifically, with the exception of employees who request time off to attend political conventions. However, defending a resulting wrongful-termination suit based on such a policy can be painful, as a grocery store operator who fired a truck driver for cross-dressing off duty found out. The employer said it was worried about the potential negative impact to its business from having a cross-dresser on staff. After the termination, the employee sued the employer, alleging he was fired in violation of Title VII of the Civil Rights Act for failure to conform to gender norms. The employer won the suit but suffered through bad press, public disapproval and low employee morale on its way to victory. Likewise, private-sector employers who take action against employees who communicate negative or derogatory messages about their employer may find themselves embroiled in litigation. Although private-sector employees lack constitutional free-speech protections from adverse employment actions, their off-duty communications may be protected by the National Labor Relations Act, the Sarbanes-Oxley Act of 2002, or other federal and Texas whistle-blower and anti-retaliation statutes, depending on the context. Arrests and convictions: Except in certain occupations, Texas law does not limit employers’ rights to choose to employ or not employ individuals with criminal convictions and arrests. Employees whose off-duty behaviors lead to arrests and convictions may face termination. However, this represents another area in which employers must tread carefully. If the employer has sufficient facts to conclude that an employee committed work-related misconduct that led to an arrest, the employer is not required to wait for a conviction before terminating that employee. If an arrest causes the employee to violate the employer’s work rules, such as attendance rules, resulting adverse employment action will generally be defensible. Even misconduct that is not specifically work-related could impact the employer. For example, repeated arrests for domestic violence could indicate a threat of future workplace violence. Arrests for off-duty conduct involving dishonesty could also justify a work-related concern on the part of the employer. If the employer has a reasonable concern about continuing to employ someone who has been arrested or convicted, termination will usually be safe, but individualized deliberation is always advisable. C-level executives should undertake attempts to regulate employee off-duty conduct only after thorough consideration of the consequences. Even where such control is legal, it could expose employers to other risks, such as inviting meritless suits and claims, negative public opinion and diminished employee relations. Stephanie G. John is a member in the Houston office of McGlinchey Stafford. Her practice is devoted to representation of management in labor, employment and benefits litigation matters. She is a graduate of Louisiana State University and LSU s Paul M. Hebert Law Center.

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