Off Duty but on the Company Radar

Published: Jan 24, 2019
Modified: Mar 26, 2020

By Mark Vickers

Can an employer tell its workers not to engage in legal behaviors when they’re off duty? Sometimes, yes. In fact, some workers’ rights organizations are worried there may be an increase in the number of cases in which employees are “disciplined or fired” for off-duty behaviors, reports USA TODAY (Armous & Appleby, 2005).

Whether or not this really is a trend is debatable, since there’s no source that tracks such cases, but the notion of curtailing off-duty behaviors has seemed to gain greater media attention recently, largely thanks to certain high-profile instances.

Take the issue of smoking. Many companies ban smoking on the work premises, but when medical-benefits administrator Weyco Inc. announced it wouldn’t employ smokers at all, it created a national sensation. In January 2005, Weyco started testing employees for tobacco use.

“Employees are making lifestyle decisions that affect my bottom line and the other employees’ paychecks,” said Howard Weyers, president of Weyco, at a recent conference (Wojcik, 2005). He claims that smokers cost employers more than $4,000 per year in absenteeism, medical benefits, and a range of other expenses (Kinsman, 2005). The U.S. government estimates that smoking accounts for about 8% of healthcare spending in the nation (Gunn, 2004).

The idea of trying to keep smokers out of the workforce may be catching on. Alaska Airlines reportedly has a policy of not hiring people who smoke (Sappenfield, 2005). In Michigan, Kalamazoo Valley Community College stated that it neither hires smokers nor promotes part-time workers who smoke into full-time jobs. (“Want,” 2005).

But these policies can spread only so far. In 31 U.S. states, there are laws that prohibit employers from banning workers who smoke or engage in various other activities when not on the job, according to Lewis Maltby, president of the National Workrights Institute (Kinsman, 2005). Some state laws are “tailored directly toward smokers’ rights or issues related to alcohol or obesity,” said Glenn Patton, a partner at Alston & Bird LLP who specializes in employment law, according to Business Insurance magazine. “Others are more catch-all statutes that say employers are not allowed to take action against employees for engaging in otherwise-lawful, off-duty conduct” (Wojcik, 2005).

Still, this hasn’t stopped companies in some states from trying to do what they can to make sure employee behaviors don’t impinge on their images. One high-profile example is that of the Borgata Hotel Casino & Spa in Atlantic City, NJ. The casino will reportedly dismiss bartenders and waitresses for gaining more than 7% of their body weight, though they’re first given a 90-day suspension to lose weight. “Our costumed beverage servers are a huge part of our marketing and our branding image,” explains Cassie Fireman, vice president of talent (“N.J. Casino,” 2005).

Branding and image also come into play with another type of off-duty corporate behavior: blogging. Web logging, or blogging, often occurs at home, but a business may object to worker blogs if they put a negative spin on things that happen at work, present an adverse image that could spill over onto the corporate brand, or disclose confidential company information. A Society for Human Resource Management study found that 3% of surveyed companies had disciplined or fired workers during the previous year as a result of blogging (Osterman, 2005).

In Canada, for example, a woman was dismissed from her job as a tourism marketing officer after she posted unflattering photos of the local area on a blog she published when off duty (“Blog,” 2004). In another case, Delta Air Lines fired a flight attendant who posted photographs of herself in uniform on her blog (Osterman, 2005).

Many companies are just beginning to figure out how they should deal with this phenomenon, including the legal ramifications. Some bloggers, for example, are protected under state laws covering off-duty behaviors. Other laws can also come into play, depending on the circumstances, according to lawyer Jonathan Segal, writing in HR Magazine. A blogger who claims she or he is discriminated against at work, for example, might be protected under Title VII of the Civil Rights Act. Or if he’s voicing grievances that apply to other workers, he might be covered under the National Labor Relations Act (Segal, 2005).

Even if a blogger-employee isn’t protected by the law, a company might be reluctant to take disciplinary action for fear of harming worker morale or sparking bad publicity. “In the absence of a compelling employer interest, employees are likely to perceive discipline or termination for off-duty blogging as employer overreaching,” writes Segal.

The truth is, trying to limit any legal, off-duty behavior is likely to be tricky from a managerial point of view. Employers must be careful to understand not only the legalities but also the potential impact on the hearts and minds of employees.


For more information on legal trends in the workplace, see HRI’s Workplace Litigation Trends Knowledge Center. This center includes a comprehensive InfoBank report, a more concise highlight report, and a variety of other resources, including related TrendWatchers.

Documents used in the preparation of this TrendWatcher include:

Armous, Stephanie and Julie Appleby. “Off-Duty Behavior Can Affect Job.” USA TODAY, June 12, 2005.

“Blog Results in Firing.” Canadian HR Reporter, ABI/INFORM, October 11, 2004, p. 2.

Gunn, Eileen. “No Ifs, Ands or Butts: Smokers Need Not Apply.” Career, December 14, 2004.

Kinsman, Michael. “More Employers Looking into Workers’ Off-Duty Activities.” Knight Ridder Tribune Business News, February 20, 2005.

“N.J. Casino to Fire Weightier Waitstaff.” USA TODAY [Associated Press], February 17, 2005.

Osterman, Rachel. “Airing Work Gripes Online May Relieve You of a Job.” Knight Ridder Tribune Business News, ProQuest, May 16, 2005.

Sappenfield, Mark. “Smoke-Free Zones Gain New Territory.” Christian Science Monitor, February 8, 2005.

Segal, Jonathan A. “Beware Bashing Bloggers.” HR Magazine, ProQuest, June 2005.

“Want a Job? Kick the Habit.” Knight Ridder Business News. ProQuest, March 11, 2005.

Wojcik, Joanne. “CEO Who Banned Smokers Advises Wellness Efforts.” Business Insurance, ProQuest, May 16, 2005.

About the Author(s)

Mark Vickers is an associate with the Institute for Corporate Productivity.