ABA Family Legal Guide

Law and the Workplace

On the Job

Privacy in the Workplace

Can employers base employment decisions on employees' off-duty conduct?

It depends. Several states--such as Illinois, Minnesota, Montana, and Nevada--prohibit an employer from taking adverse action against an employee because that employee uses lawful products off employer premises during nonworking time. Thus, in those states an employer could not refuse to hire, or fire, a worker who smokes off duty or drinks alcohol. Moreover, most states prohibit employers from refusing to hire, or firing, employees because they use tobacco products off employer premises during nonworking time.

A collective bargaining agreement may require the employer to justify employment decisions based on just cause. As a general rule, in order to satisfy a just cause requirement, the employer would have to show that the employee's off-duty conduct somehow implicated the employer's legitimate business interests.