Monday HR Minute: Sexual Harassment and Drug Use
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When Employees Misbehave Off-the-Clock: Sexual Harassment and Drug Use

Handling the unacceptable behavior of an employee during work time and on-site is hard enough.  But sometimes we have employees whose behavior and actions after hours or off-site impact the company or other employees.  What can you do then?

It is a myth that you cannot take action based on an employee’s off-hours behavior.  If it impacts your business, clients,  other employees, and/or reputation, you may have the ability, and sometimes the obligation, to discipline accordingly.

While most of your employment policies only cover working time, there are several critical policies that also cover off-hours behavior, most importantly:
  • Non-Harassment/Non-Sexual Harassment/Non-Discrimination/Non-Retaliation
  • Substance Use and Abuse
  • Confidentiality/Non-Disclosure
  • Workplace Violence
Typical situations we have seen include:
  • An employee makes unacceptable advances and/or comments to another employee during an after-hours gathering for “happy hour”. Even though this is a voluntary event not sponsored or organized by the company, the victim has protections under the sexual harassment policy.  If the harassed party makes a complaint or if a third party mentions the unacceptable behavior, management must investigate and take action so the harassed person feels safe.  The discipline may not be as harsh as if it happened on-site, but a warning at least may be warranted. If the accused is a manager, investigating and taking action is even more necessary as that liability will fall on the company regardless of if it is work time or not.
  • An employee uses marijuana legally over the weekend but then fails a random drug test on Monday. The legalization of marijuana has created issues when it comes to drafting and implementing employment policies. Since marijuana shows up as a positive result for much longer than the employee is under the influence, it is hard to know when and how to discipline. In some situations, you may need to witness several side effects of the employee being under the influence regardless of the drug test result.  In others, any positive result is ground for termination.
If you find yourself in a situation like these, contact Affinity HR Group to help walk you through what you can and can’t do.

Next week: When Employees Misbehave Off-the-clock, part 2: Inappropriate Behavior, Social Media Posts, and Arrests


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The Monday HR Minute, brought to you by Affinity HR Group, is designed to provide you with practical, applicable human resources and management advice and information in a format that will take you 60 seconds or less to read.  We believe that by dedicating just one minute a week to thinking about people management practices, business owners and managers can make enormous strides in improving workplace performance.
Affinity HR Group is a full service human resources consulting firm that specializes in advising small and medium-sized enterprises. Our services include recruiting and selection, HR policies and compliance, ad hoc HR support, compensation and performance management, and training and development. We are an endorsed HR partner of a number of leading national trade associations and offer free initial consultations and discounted services to their member companies.
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This e-mail may contain general information about legal matters. Affinity HR Group does not provide legal counsel. The information provided should not be considered legal advice and should not be relied on as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about this content or any legal matter you should consult your attorney or other professional legal services provider.
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