Lifestyle-protection laws: Unworkable, unnecessary

Employees can be terminated for their legal off-duty pursuits or for no reason at all. So-called “lifestyle protection” legislation, which would restrict this right, is not supported by public policy, is unnecessary, has proved unworkable and will harm the competitiveness of Florida employers.

For years, the employment at-will rule has allowed employers and employees to walk away from the employment relationship at any time, for no reason. The rule operates on the fundamental principle of freedom of contract, which guides the American free-market economy.

Employees already have common-law protection against invasion of privacy. In addition, employers have no financial incentive to terminate employees for off-duty conduct unless it relates to job performance, puts the employer’s business in a negative light or has the potential for harming business. While several states have enacted lifestyle-protection statutes, few, if any cases, have been filed under these statutes, proving that the need is at least overstated.

In the states with lifestyle-protection statutes, the measures have proved unworkable. Courts have interpreted the statutes inconsistently because they are worded so vaguely — out of necessity, given the amorphous protection they seek to provide. For example, California’s statute has been interpreted to provide no substantive protection, other than those rights already recognized by the state constitution.

In addition, different jobs entail different considerations, and offduty conduct involves too many variables for such legislation to fairly address without abrogating the at-will rule. Off-duty conduct involving excessive alcohol use, gambling debts or posting of sexually explicit photos must be viewed differently depending on whether the employee is a police officer, a teacher, a plumber or a banker.

These statutes will conflict with duties imposed on employers by state and federal employment laws, and will decrease employer competitiveness. Employers generally have a duty to provide a safe workplace. Lifestyle-protection statutes — which prohibit termination of employees engaging in deviant or violent offduty conduct — interfere with this right, put other employees at risk and expose employers to claims of negligent hiring and retention.

Technology has erased the lines between on-duty and off-duty conduct. An employer’s failure to address discriminatory off-duty conduct is, today, the legal equivalent of an acknowledgment that such conduct is permitted on duty. And, since experience teaches that those who engage in discriminatory conduct outside of the workplace also do so in the workplace, employers must be able to respond to off-duty conduct by terminating offending employees to protect other employees from such conduct (wherever it occurs) and to avoid exposure to discrimination and retaliation claims.

These statutes also would preclude the termination of a company sales manager who is dating the marketing director of the company’s direct competitor, forcing the company to pray that company trade secrets and marketing plans are not disclosed. They would preclude the termination of a moonlighting employee using company resources and paid time off to pursue that endeavor.

And, they would prevent employers from terminating employees whose irresponsible lifestyle habits have driven up company health-care costs, forcing the company to cancel health-care for all employees.

Employers have a legitimate right to know about and act on information about the conduct of employees that jeopardizes company business interests, trade secrets, competitiveness, future success and the ability to provide future employment for others.

While certain policy interests often outweigh various burdens to business, the creation of a general right of privacy for at-will employees is unprecedented, unwarranted and irresponsible.

Employers must be able to respond to off-duty conduct by terminating offending employees to protect other employees from such conduct.