An employee lights a cigarette on her drive to work in the morning. Some weeks prior, her employer announced that all company employees are to quit or refrain from smoking entirely within the next 30 days, whether at home or work, or risk being let go from their jobs. The employer had otherwise reasonably explained that a healthy workforce was key to keeping everyone productive, controlling insurance costs in order to expand other benefits and maintaining greater parity in break time among all employees. Given this new policy, would the employer then have legal grounds to fire that employee for having smoked on her way to work, or at any other time off the clock?
Off-Duty Conduct and the Employment Relationship
Florida is an at-will employment state, like every US state except for Montana. Either party can legally end the employment relationship at any time unless contract terms state otherwise. Although employees generally maintain a constitutionally protected right to privacy and common law protection from intrusion on their “seclusion”, employers are generally permitted to terminate an employee for conduct that occurs even when not on the clock. This is because the state of Florida does not have what’s called an off-duty conduct statute on the books, which could otherwise prevent employers from punishing or firing employees for certain forms of conduct off the job (usually with an exception for criminal conduct).
Let’s stick with the smoking example and say that an employer has a consistently applied policy, which states that employees must be non-smokers. If it is determined that an employee is a smoker while not on the clock, then it is still legal for the employer to fire that employee, even though the smoking was done off-duty. This is assuming that the employee is not protected by contract terms and the smoking rationale is not pretext for termination on the basis of protected status or activity. While an activity like smoking may seem frivolous, insufficient or unjust in the employee’s eyes as a basis for losing one’s job, the employer is permitted to enforce a consistently-applied policy and make that decision, just as it is permitted to make any lawful hiring or firing decisions at-will.
Every Case Is Different
Employers should carefully evaluate such decisions on a case-by-case basis to ensure they are not in violation of any employee’s rights, whether current or former. All parties should bear in mind that employees are in fact entitled to certain protections under federal and state law, and that the example of smoking is straightforward where other cases of off-duty conduct may not be. An experienced employment law attorney will be able to assist in these matters and safeguard both employer compliance and employee rights.
