Can California Employers Regulate Workers' Off-Duty Conduct?

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LONG BEACH—When managing employees' off-duty conduct, HR professionals must navigate a lot of gray areas, said Jennifer Suberlak, an attorney with Pettit Kohn in San Diego.

Speaking at the Professionals in Human Resources Association 2019 California HR Conference, Suberlak said employers might uncover the following activities if they dig into their workers' lives outside of the office:

• Drug and alcohol use or abuse.
• Political activism.
• Irresponsible social media use.
• Romantic relationships between co-workers.
• Moonlighting.

But California employers must be aware of the state's privacy rules that protect workers when they engage in certain lawful off-duty activities. The California Constitution identifies certain inalienable rights for citizens, including "pursuing and obtaining safety, happiness and privacy." Additionally, employees in the state are covered by various statutes that protect their privacy.

Marijuana Use

Californians voted in 2016 to legalize the recreational use of marijuana. However, legalization doesn't necessarily mean that California employers must tolerate marijuana use. Employers can still maintain a drug-free workplace and insist that employees refrain from working under the influence, Suberlak noted.

Employers should review their drug and alcohol policies and communicate their position to the workforce, she advised.

[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]

California law currently doesn't require employers to provide reasonable accommodations for medical marijuana use. But if an employer does choose to provide an accommodation, it should make sure that the accommodation is reasonable and apply its policy consistently, she added.

The law could change. Suberlak urged employers to be on the lookout for future bills from the state legislature seeking to ban employers from discriminating against registered medical marijuana patients.

In general, pre-employment drug testing is permissible, but policies must be applied consistently. Suberlak advised employers to wait to do this testing until after a conditional job offer has been made.

Activism and Social Media Use

Employee activism and social engagement may take the form of protests, rallies, demonstrations or other political activities. Suberlak said Americans are living in "polarized times," and, therefore, they may turn to activism and political causes to vent their outrage and concerns.

The California Labor Code includes a number of protections for workers. For instance, Section 96(k) protects workers who have faced adverse employment actions for engaging in lawful activities during nonworking hours.

When it comes to posting on social media, there's a tug of war between protecting employees' right to discuss working conditions and respecting companies' right to protect their reputation and intellectual property, according to Suberlak.

The National Labor Relations Act protects certain types of employee posts on social media sites and is enforced by the National Labor Relations Board (NLRB).

If an employer issues very broad language stating that workers can't say anything negative about the company, that won't be acceptable to the NLRB, she noted.

By contrast, if an employer prohibits workers from making defamatory comments about its customers, suppliers or competitors, that will probably be acceptable to the NLRB.

Other employer requirements that the NLRB would find acceptable include:

• Prohibiting harassment, discrimination, retaliation or bullying on social media.
• Requiring employees to get permission before posting messages attributable to the employer.
• Prohibiting disclosure of trade secrets and other confidential company information (if specifically defined).

Romantic Relationships

"There's only so much you can do" about co-workers who are in romantic relationships, Suberlak said. She noted that some potential problems can arise from these relationships, such as sexual-harassment claims and business disruptions.

Employers may want to adopt policies outlining the workplace rules on romantic relationships, she suggested. For instance, if a supervisor and a subordinate start dating, the policy could ask them to inform management.

Suberlak also urged employers to develop well-crafted policies to prevent harassment, discrimination and retaliation.

Moonlighting

In the age of "side hustles," such as working for Uber or Lyft, what can an employer do about moonlighting? In California, employers aren't allowed to simply prohibit employees from having another job. But companies can place restrictions in certain situations, such as when working for a competitor would create a conflict of interest.

The issues arising from employees' off-duty conduct are compelling to conference attendee Haydee Castaneda, SHRM-CP, HR manager at Sycamore Mineral Springs Resort & Spa in San Luis Obispo. She told SHRM Online that she's very interested in learning about the latest developments on this topic—especially issues with employee posts on social media.

"I just want to ensure we're in compliance and following the law," she said.