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Getting fired off the clock.
10/12/2006
 
ROBIN'S PERSPECTIVE: There have been a lot of stories recently about employers firing workers for off the clock conduct. Most notably, employee benefits company Weyco, Inc. fired four employees because they refused to quit smoking off the job. The company cited the increased risk of developing deadly, not to mention costly, diseases resulting in higher healthcare costs for everyone.

The supermarket chain Winn-Dixie terminated an otherwise model employee for his propensity to cross dress off the clock. The employee sued the grocery store chain on the grounds of sex discrimination but lost his case. The judge held that in that circuit, being trans-gendered was not a protected class, and thus discrimination against the cross dresser was not illegal.

The law of the land is employment at will. That means employees can generally be fired for any reason, as long as the reason is not in violation of a law. Some states do have laws outlining the parameters for legal use off-duty of certain products (usually alcohol or tobacco). Use of those products in accordance with the law means that the employer cannot use that information against the employee in making employment decisions. In most other cases, termination for off-duty behavior is legally acceptable. Private employers generally have the right to fire employees for almost any reason except because of their membership in a protected class like gender, race, religion, national origin, disability or age.

Bottom Line for Employees - Learn about your company¹s policy for off-duty conduct, then gauge your behavior, and your level of candor in the office, accordingly.

Bottom Line for Employers- State your policy for off-duty conduct and the consequences for breaking it. It could save you time and money in the event of potential lawsuits. One caveat: an employee fired due to monitoring that exceeds the bounds of such a policy may ultimately be able to show that the excessive monitoring was the result of ulterior – and discriminatory – motives.


 
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Robin Bond
 
Robin Bond, Esq.
 
 
Workplace Legal Analyst


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