Privacy in the Workplace

Privacy policies help to define the proper balance between the company’s and employees’ need-to-know and right-to-privacy. You may think that in situations involving computer use, drug testing, security, etc., the company has the right to any and all information.  In truth, it depends.

Does the company have the right to control employees’ or applicants’ off-duty conduct?
As an employer, you may feel you have the right to control your employees’ actions on and off duty – especially when off-duty behavior is illegal or is perceived to cause harm to the employer. Many employees disagree and there are only five states that do not regulate, in some way, the use of information obtained about off-duty conduct. With the popularity of social media and the ease in which employers gain information about off-duty activities, the possibility of taking inappropriate employment action is increasing

Laws concerning protection of employee off-duty activities vary tremendously from state-to-state. In California, state law (Cal. Lab. Code 96(k), 1101, 1102) prohibits the demotion, suspension or discharge from employment for lawful conduct occurring during non-working hours away from an employer’s premises. Washington,D.C., has specific regulations (D.C. Code 7-1703-03) preventing employers from discharging, refusing to hire or otherwise discriminating against individuals because they use any tobacco product, except where not using tobacco represents a bona fide occupational qualification. Ohio doesn’t prohibit employers from making employment decisions based on employees’ or applicants’ conduct away from the job other than religious activity protected by the Ohio Civil Rights Act (Ohio Re. Code 4112). Legal off-duty activities most regulated include tobacco use, alcohol use and political campaigning.

Employers also need to consider that an employee who is discharged for off-duty activity may be entitled to unemployment insurance. If the employer is unable to show how that off-duty conduct related to its legitimate business needs or violated a duty owed to the employer, the discharge is more likely to be ruled “no fault of the employee” for the purpose of unemployment compensation.

Before making employment decisions based on off-duty activities, be sure that you know your state laws and carefully consider your actions.

Contact Oasis Outsourcing at 866-AT-OASIS (866-286-2747) or visit us online at

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