What are the consequences to the employer of an employee's off-duty conduct?

If HR regulates a worker's off-duty conduct (such as dating, marriage, or smoking), or makes an employment decision based on outside misconduct (such as drug use or other criminal activity), the employer may face a lawsuit for invasion of privacy or some other violation of the law.

On the other hand, if HR allows someone to continue working after it receives information indicating that the employee may be violent or untrustworthy, it opens the organization up to a lawsuit from a third party who is injured by the employee.

Setting policy: remember to strike a balance. Therefore, in setting policies regarding off-duty activity or misconduct, it is more important than ever to strike a balance between protecting employees' privacy and protecting the safety of coworkers, customers and other third parties.

There are limits on how far an employer can go in basing employment decisions on conduct that takes place outside of the workplace without invading employee privacy rights. Off-duty conduct upon which employment actions are based may range from:

• intimate relationships, to
• smoking and the use of other lawful products, to
• legal recreational activities, to
• unlawful criminal acts.

At the outset, HR needs to analyze the relationship between the employee conduct and the requirements of the job. Next, HR should look at the seriousness of the job action contemplated, factoring in whether the decision is simply not to hire an individual or to transfer or terminate an existing employee.