Jan is a great worker. A highly competent second in charge. Some even say that she’s better than the Director. She is outgoing and has many friends in the community. With an active social life, she is known to hang out after hours at a couple of local establishments which serve alcohol. Jan has never appeared drunk in public or behaved in any way which would impair the reputation of her employer, and she shows up for work on time, often going that extra mile for her employer, but her employer just doesn’t like the fact that Jan likes to have a few drinks after work or on weekends; they see it as a bad habit that might eventually impair her ability to perform her duties and they feel it’s “undignified” for her to be hanging around bars. There is growing sentiment that Jan should be demoted or discharged before she does something that will embarrass the employer.
Is the fact that Jan enjoys a drink off duty a lawful reason to demote or discharge her?
According to Illinois law, probably not. The Illinois Right to Privacy in the Workplace Act provides as follows:
it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours.
The Act has some exceptions. For example, if Jan worked for a not for profit organization which had a primary purpose of educating the public on the perils of consuming alcohol, or if Jan’s after hours partying was affecting her work, then her employer could lawfully consider her conduct as a basis for discharging her.
With the expansion of social media and the improvement of technology, it’s increasingly more difficult to keep off duty conduct private. The Right to Privacy in the Workplace Act reinforces to employers the need to make employment decisions based on performance and conduct at work. The only time that off duty conduct is a valid and relevant factor for workplace decisions is if that conduct impairs the reputation of the employer or impairs the employee’s ability to perform the duties of their job. Jan can party all she wants as long as she doesn’t do anything which reflects poorly on her employer, reports to work every day on time, does her job and follows the rules of her employer while she is working.
