'You Can't Fire Me For That – I Was Off Duty!'

Employers learned long ago that it's wise to establish written policies which set forth the standards of conduct expected of their employees. These employers also know that the policies may not simply sit on a shelf (or on an intranet), but must be monitored and enforced in order to remain effective tools for encouraging or prohibiting certain behavior. But can you rely on your policies to discipline or terminate employees for engaging in legal conduct which occurred off-duty, especially if the conduct also occurred off-premises, and did not negatively impact the employee's performance of his or her duties or your business?

While you are probably familiar with laws which protect an employee's right to engage in what is sometimes referred to as "protected conduct" (e.g., making a charge of discrimination, complaining of wage and hour violations, whistleblowing, filing a workers' compensation claim, requesting reasonable accommodation of a disability, engaging in concerted union activity as defined in the NLRA) without fear of retaliation, other lawful activities may also be deemed "protected" by certain statutes, although not always without limitation. The following, which is by no means an exhaustive list, are some examples of off-duty conduct which may or may not be grounds for discipline or termination, depending on the state and the circumstances.

Medical Marijuana

In Roe v. Teletech Customer Care Management (2011), an applicant for a position as a customer-service representative for a telesales company was offered employment conditioned on her passing the company's reference and background checks and a drug screening policy. The applicant, who had already started attending training for the position, submitted to the drug screen, and tested positive for marijuana. The applicant informed the company that she suffered from debilitating migraine headaches and used medical marijuana at home, as prescribed by her doctor, which was legal under Washington's Medical Use of Marijuana Act (MUMA), and even offered to provide a doctor's note to prove it.

Unmoved, the company withdrew its offer of employment based on the applicant's failure to pass the drug screen, even though there was no evidence that the employee was under the influence of marijuana at work or that her work would have been affected in any way. The applicant sued, but to no avail. The Washington Supreme Court determined that MUMA, while providing an affirmative defense to criminal...