Off-Duty Conduct

Published:  March 5, 2019

The recent highly publicized charges against the New England Patriots owner Robert Kraft highlight a recurring concern for employers: what can an employer do if an employee’s off-duty conduct results in negative publicity? It is not uncommon for employers to open the local newspaper or local news website and see an employee’s mugshot or a photo engaging in some controversial activity. Even if the individual isn’t identified as an employee of your business, clients and coworkers could eventually find out. This is particularly problematic with client-facing employees.

Do you want your company associated with an employee’s controversial off-duty conduct?

Believe it or not, an employer’s options may be limited depending on the circumstances. There is a multitude of potential problems that must be considered. Employers need to look at the situation from all angles. Rushing to make a decision without consulting counsel can create a huge risk of legal liability.

At-will employment means you can terminate an employee for any or no reason; unless, however, the reason is unlawful. Most states are employment at-will states. However, this designation can be misleading. What reasons are unlawful? Unlawful reasons for termination usually involve termination in retaliation for engaging in some conduct protected by state or federal law, such as protesting practices prohibited by anti-discrimination, labor or wage-and-hour laws. If an employee is engaging in this type of protected conduct, it would be unlawful to terminate the employee for doing so (absent special circumstances), no matter how high-profile and/or embarrassing that protected conduct may be. Even if an employee’s off-duty activity paints the employer in a bad light, the employer may not be able to terminate the employee if the employee’s conduct is legally protected.

The issue at hand should be clearer when the employee’s off-duty conduct is criminal in nature. For example, this frequently happens when employees are arrested for infractions, such as driving under the influence, drug possession, domestic violence, etc. This type of off-duty conduct can create major embarrassment for the company, especially if the area is highly publicized. In theory, employers should have significantly greater discretion in taking adverse action against the employee under these circumstances. However, depending on the state and the specific circumstances, the employer may not have as many options as they think.

The question becomes more complicated when the off-duty conduct is controversial, but not necessarily unlawful. Each state handles these problems differently. Some states have very few prohibitions, while others have very strong prohibitions. For example, California prohibits adverse action against an employee for engaging in lawful activity off-duty and off company premises. Illinois prohibits adverse action for using/consuming legal products off-duty and off company premises. New York prohibits both.


The EEOC’s position on use of criminal arrest or conviction history can make matters complicated. Although the EEOC is primarily charged with enforcing laws prohibiting discrimination on the basis of protected classifications like race, color, religion, gender, etc., they scrutinize adverse employment decisions based on criminal arrest or conviction history because arrest and incarceration rates disproportionately affect certain protected classes. If a plaintiff can establish that use of this information has a disparate impact on their protected class, the employer must bear the burden of showing that the action is job-related and consistent with business necessity.

The EEOC points out that an arrest does not actually establish that unlawful conduct did occur, and in fact many arrests do not even result in criminal charges. However, an arrest may, in some circumstances, justify an analysis of whether the underlying conduct warrants adverse action. Therefore, Title VII requires a “fact-based analysis” to determine if the adverse action is job-related and consistent with business necessity. The EEOC takes the position that an adverse decision based on an arrest is not, in itself, job-related and consistent with business necessity. The adverse action must be shown to be necessary for safe and efficient job performance.

The EEOC will commonly look to a few factors: the nature and gravity of the offense or conduct, the time that has passed since the offense or conduct, and the nature of the job held or sought. Even where an adverse action satisfies the EEOC’s standards, different states have additional prohibitions, which may prevent taking adverse action against an arrested (but not convicted or not yet convicted) employee. These standards vary greatly from state-to-state.

Even outside the context of highly objectionable conduct, something as commonplace as tobacco use will split jurisdictions. For example, Connecticut and Rhode Island prohibit employers from taking adverse action against employees for use of tobacco off-duty and off company premises. However, Massachusetts offers no such protections. Massachusetts employees can be terminated for using tobacco, even off-duty and off company premises. In fact, Massachusetts has very few limitations on an employer’s ability to take adverse action for off-duty conduct. However, unreasonable intrusion into an employee’s private life and off-duty conduct may, in some circumstances, give rise to a claim under the Massachusetts Privacy Act. However, the circumstances under which the Mass. Privacy Act may be invoked, is poorly defined.

The problem is that these questions are heavily nuanced, and in most cases, may change depending on the specific nature and circumstances of the conduct. Furthermore, those nuanced answers will change depending on the jurisdiction in question. If your company finds itself in this unfortunate position, it is wise to consult with counsel before making any decisions or taking any actions. Even seemingly common sense reactions to these circumstances can create a risk of incurring substantial liability.

If you have any questions regarding this topic, or any aspect of labor and employment law, please contact the attorneys at Royal, P.C.