I'll Be Watching You — FAQ's: Monitoring Off-Duty Employee Conduct

June 16, 2020

By: Erica A. Jacobson and Colin A. Walker

Should employers watch every step their employees take? Every move they make? What if the employee is off duty? The answers to these questions are not easy. As many employees return to the office following COVID-19 shutdowns, the health and safety implications of employee behavior make these issues even more challenging. Here are several frequently asked questions about this tricky employment issue: 

  1. Are employers allowed to regulate an employee’s lawful off-duty conduct in Colorado? 
    Generally, no. Colorado’s lawful off-duty conduct statute protects employees from an employer’s intrusion into their lives away from the office by making it illegal to terminate an employee for engaging in any lawful activity off premises during non-working hours. 
  2. What type of lawful conduct is protected?  
    Colorado’s lawful off-duty statute provides broad protection for legal activities. Other Colorado laws also provide additional protection for employees who: engage in social and political rallies outside of work: are members of unpopular political parties: and are victims of crimes, victims of domestic violence or workplace violence, or injured workers who file workers’ compensation claims. 

    Other off-duty employee conduct, including social media posts, may also be protected under federal laws. The National Labor Relations Board may restrict an employer’s right to terminate an employee for engaging in “concerted activity” on social media. Concerted activity is communication between or among one or more employees concerning the terms and conditions of employment, such as pay, benefits, and working conditions.  Additionally, an employer can violate the National Labor Relations Board’s rules by maintaining overbroad social media policies if they prevent employees from discussing their wages or other conditions of employment.
  3. Are there any exceptions to the lawful off-duty conduct statute? 
    There are a couple of statutory defenses an employer can invoke against a lawful off-duty activity claim. These defenses are intended to balance employee privacy against the legitimate needs of an employer. First, an employer may be able to defeat a claim by showing that the restriction relates to a bona fide occupational requirement or is reasonably and rationally related to the employee’s employment activities and responsibilities. This could apply to a particular employee or a particular group of employees, rather than to all employees. Second, an employer can raise the defense that the restriction is necessary to avoid a conflict of interest with any of the employee’s responsibilities to the employer or the appearance of a conflict of interest.  Only lawful off-duty activity is protected under this statue. 
  4. Can an employer terminate an employee if it learns through social media that the employee is abusing medical leave?
    Several court cases have held that an employer can investigate fraud relating to leave under the Family Medical Leave Act (“FMLA”) and, if fraud is substantiated, take disciplinary action against the employee, including termination.  Similarly, employers can take action against at-will employees who abuse sick leave policies.  However, employers should be aware that the FMLA has strict requirements regarding denial of medical leave.  Several employers which thought they had caught an employee “red-handed” abusing medical leave have been disappointed when the court ruled against them because they had rushed to judgment.  
  5. Should an employer monitor off-duty travel, attendance at mass gatherings, and whether employees are wearing masks?  
    Regardless of whether an employer can establish a valid defense to a lawful off-duty conduct claim, the question of whether the employer should monitor off-duty behavior remains. That question is difficult to answer. On one hand, travel, attendance at mass gatherings, and whether your employees are wearing masks may impact the safety of other employees at the office. On the other hand, employees may be resistant to an intrusion into their personal lives (assuming the employees are abiding by the relevant local and state regulations regarding these behaviors). Employees may have varying views on the local pandemic safety recommendations and  monitoring these type of off-duty activities may polarize a workplace. The answer depends on a company’s culture, size, and resources available to devote to this type of monitoring. The difficulty with such a policy is consistent enforcement.  
  6. What damages may an employee recover if the employee is successful in bringing a lawful off-duty conduct claim? 
    Damages pursuant to the lawful off-duty conduct statute are designed to make the employee whole, including all wages and benefits due to the employee up to and including the date of judgment, had the discriminatory or unfair employment practice not occurred. Additionally, the court may allow for attorneys’ fees if the employee is successful in proving wrongful termination and the employer has more than 15 employees. 
  7. What other risks would an employer face when monitoring employee’s off-duty activities?
    Information obtained from social media and other sources regarding off-duty activities could be used to support discrimination claims.  For example, if an employer obtained information which evidenced religion, sexual orientation, or other protected classes and, shortly thereafter, the employer took adverse action against the employee, such as termination, the employee could argue that the reason for the adverse action was that the employer found out about the protected class.  While the employer could argue to the contrary and present legitimate reasons for the action, the information on protected class could be used to undermine it and increase the risk of liability.  Keep in mind that what is depicted on social media sites in many cases is unclear, subject to interpretation, or untrue.  In some cases, a third party may post information about an employee without the employee’s knowledge or consent and may do so for malicious reasons.  Especially considering the risk of liability under the lawful activities statute, employment discrimination statutes, and other laws, employers should be very careful when relying on such information.