Can You Control An Employee’s Outside Activities?

Sometimes an employee's outside activity (paid or unpaid) can cause a professional conflict for your business. However, you have to proceed carefully before you fire an employee for his or her conduct off the job. These are the things that you need to consider.

Is the outside activity legal or illegal?

If the outside activity you're concerned about is legal and unrelated to a job, you may not be able to do anything about it, especially if the action is protected under the law. For example, since unionization is a protected activity under the law, your employees have a right to organize even if you feel like they are damaging your reputation as a good employer.

On the other hand, if the activity is legal but not protected under the law, you may still be able to forbid it. For example, increasingly health-conscious employers (particularly those in the healthcare industry) are implementing policies that forbid employees from smoking, even on their own time. In some states, that's entirely legal. Before you move to take such action, however, you should consult with an attorney to determine if a policy forbidding an otherwise legal activity is valid in your state.

If an activity is illegal, you can generally forbid an employee from participating in it and it can be considered a grounds for termination.

Is the outside activity moonlighting?

One of the most frequent situations confronting employers is employee moonlighting, whether the employee is working a second job or operating a side business for himself or herself. From a legal perspective, it may be easiest to forbid any type of moonlighting and have that in your company policy. A strict policy is easiest to enforce without worrying that you are being discriminatory.

On the other hand, that may not be the best tactic to take, especially if the economy in your area is slow or employees are struggling to meet their bills. Many employers prefer to deal with the issue on a case-by-case basis.

There are several questions you should ask yourself when evaluating whether moonlighting is a problem:

  • Is there any relationship between the employee's moonlighting and the business you run?

  • Is there any harm coming to your business due to the moonlighting?

  • Is there something about the other job that reflects badly on your business?

Unless any of these are true, there may not be any reason to terminate your employee. For example, if you're operating a childcare business, and an employee begins working as a realtor on the weekends, there's no relationship between your business and the realty business. As long as the employee isn't leaving work to show houses during the week, or coming in late, there's not any harm coming to your business. Realty work isn't morally questionable nor should it cause your clients concern about the safety of their children with your employee. On the other hand, if the employee is taking calls from realty clients during the workday or tries to solicit work from your clients, that calls into question his or her focus on the childcare job at hand.

For more information on how to handle a conflict between your business and an employee's outside activity, talk to an attorney today.

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