Was the employee engaging in “legal off-duty activity” protected by state law or illegal activity?
Some states have “lawful conduct” laws that may protect an employee or applicant’s legal off-duty activities. For example, under California law, an employee is protected from “demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” Thus, in some states, an employer may be prohibited from terminating an employee who, for example, posts pictures of himself intoxicated at a party (assuming the employee is over 21 years old). In contrast, the employer may have more leeway where the conduct is illegal (assuming the employee is under 21 in the example provided). The law is far from clear in this area, and employers should consider each situation independently, Jackson Lewis suggests.
