Pubdate: Wed, 28 Oct 1998
Source: San Luis Obispo Telegram-Tribune (CA)
Section: Business
Copyright: 1998 San Luis Obispo County Telegram-Tribune 
Contact:  http://www.sanluisobispo.com/
Author: Carol Kleiman

COURTS PUSHING EMPLOYERS OUT OF PRIVATE LIVES

What impact does your off-duty behavior have on your job? Can living
with your boyfriend, having a bit too much to drink on Saturday night,
or wearing motorcycle gear around town cost you your job?

The answer is yes, you can be fired, but you can also fight back under
protection of state and federal privacy laws.

Whether or not you win is what's iffy.

"Why shouldn't you be fired for off-duty behavior? It's part of being
employed 'at will,'" said George F. Galland Jr., an employment lawyer
and partner in the Chicago law firm of Miner, Barnhill & Galland.

Employment at-will - the law in every state but Montana - allows an
employer to fire you for any reason that doesn't violate
anti-discrimination laws. (Whistleblowers also have legal protection
from firing.)

But Galland, a prominent attorney with a long string of victories for
employees, adds: "On the other hand, there's increasing (legal) reason
to believe that an employer has to be careful of invasion of privacy
matters. This is new development."

The law, he says, still is "pretty much on the company's side, but
there's a growing queasiness among employers that there's a sphere of
light outside the workplace that is none of their business."

His advice to employers: "You're probably taking some risk when you
start poking your nose into employees' private lives, deciding if
they're virtuous enough to work for you and then holding it against
them at work. That's something the average person thinks is wrong, and
the law usually follows the public's thinking."

The subject of away-from-work behavior - can you lose your job because
you got drunk at a friend's cocktail party or because you smoke at
home? - is a growing concern not only of lawyers but of personnel
executives. This year a discussion of the issue is included for the
first time in a self-study program for certification sponsored by the
Society for Human Resource Management (SHRM) in Alexandria, Va.,
according to Barbara Sadek, director education.

Limitations on how far a company can go in regulating its employees'
private lives slowly is moving to the side of the employees.

"The subject is coming up a lot more often now because employers used
to have more rights than they're viewed as having today," said Lynn C.
Outwater, an employment attorney representing management in the
Pittsburgh law office of Jackson, Lewis. "But it's a serious concern
because off-duty conduct can be significant in its effect on the
company's credibility and reputation in the community."

She says that "today, federal and state laws limit an employer's
ability to regulate seemingly 'personal conduct' in the workplace and
to base employment decisions on personal conduct outside of the workplace."

Outwater is co-author with attorney Michael J. Lotito of "Minding Your
Business: Legal Issues and Practical Answers for Managing Work Place
Privacy." The book is published by SHRM and costs $35.

Outwater also said that she expects to see "much more litigation in
this area."
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Checked-by: Patrick Henry