Between a Rock and a Hard Place – Off Duty Conduct Statutes

By: Beth Ann Lennon

The Ninth Circuit recently reminded employers to keep state statutes regarding lawful off duty work in mind. R.C. Willey had a policy prohibiting employees from arriving at work with a blood alcohol level above .04%. When an employee came to work with a higher BAL, the employer discharged him. The policy violation provided a non-discriminatory basis for the termination, and the employer won summary judgment on an ADA claim. However, under Nevada law, an employee cannot be discharged for engaging “in the lawful use . . . of any product outside the premises of the employer during the employee’s nonworking hours, if that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.” Nev. Rev. Stat § 613/333(1)(b). At the time, the employee was on light duty work and he might have been able to do his extremely limited duties while just a little drunk. Now, a jury will have to decide whether the employee’s “lawful off duty” alcohol consumption “adversely affected” his ability to do his limited duties or the safety of others. O’Brien v. R.C. Willey Home Furnishings, No. 16-16677 (9th Cir. July 13, 2018).

More than half of the states have a statute that protects employees from adverse employment actions because of their off-duty activities. Don’t focus exclusively on the federal claims; sometimes the state bites you, even outside California.