Monday, April 14, 2014

Policies limiting employees' activities off the job need to be crafted with care

With a case being heard by the U.S. Supreme Court, Hobby Lobby has been no stranger to the media this past year

Last week the company's name came up once again on a satirical Web site called the Daily Currant. The Currant's story -- a work of fiction -- was about a 33-year-old Hobby Lobby sales associate who claimed she'd been fired because she'd filed for divorce from her alcoholic husband. Hobby Lobby, which claims to base its business model on Biblical standards, considers divorce a sin and grounds for termination.

The story featured some colorful "comments" by David Green, Hobby Lobby's CEO. While it was satire (other Daily Currant headlines: "North Korean Leader Has Perfect NCAA Bracket" "US Bans The Import of Russian Vodka") – it brought up a good topic for discussion. Just how far can an employer go in limiting an employee’s life outside the workplace? 

As employees, many of us spend more time at our jobs than we spend at our homes or with our families. It would only seem logical that the moment we leave the workplace we are free to be ourselves without fear of consequences from our personal choices and activities, right?

For the most part. I would say that a number of employers don’t monitor their employees’ after-hours choices or activities. Over the past few years, however, I have seen major management practices and trends start to focus on what employees are doing outside the workplace if it's likely to have an impact on business.

Exactly how far can an employer go in limiting what an employee can do outside of work hours? Last year I remember having a conversation with a colleague who is a manager at one of the major car dealerships in southeast Idaho. He said their dealership had implemented a policy in which employees were advised they could not wear their dealership attire in public after hours if there was any possibility they might behave in a way that would reflect negatively on the dealership.

A company that does government contracting has to maintain an even higher level of monitoring. Battelle Energy Alliance, CWI and Bechtel Marine Propulsion all have very strict standards on what employees can and cannot do after hours if they don't want to risk their security clearances. There have been cases in which employees have been terminated due to misdemeanor convictions, credit issues and questionable behavior.

A company can limit the outside activities of its employees if it can prove that a person's behavior has a negative impact on the company (e.g. loss of sales, civil/criminal cases, contractual obligations, etc). Additionally, a company can implement what is called a bona fide occupational qualification to identify qualities or attributes in the hiring and retention of employees. These are more narrowly defined though employment law.

If your business is or has considered limiting outside activities of employees, it’s important to identify what those activities are and why the company does not allow them. It is also important to be mindful that a company cannot identify every action an employee might take that could have a negative impact, and that trying to broadly identify those areas could cause more harm than good.

Policies or procedures that limit people's activities off the clock should be crafted very carefully and reviewed by an HR professional and/or an employment attorney. This is to ensure that employers are not overstepping boundaries and putting themselves in situations where there might be legal liabilities.

Overall, it’s important for companies to understand the impact their employees' after-hours activities might have. But limiting those activities beyond reasonable levels can be damaging to the company and the employee base.

Monica Bitrick is an independent human resources consultant who lies in Idaho Falls.