Big Brother In The Workplace (And Out) – Nassau Lawyer Volume 54, No. 10 June 2005
By: Paul F. Millus
More and more employers are attempting to regulate their employees’ activities both within and away from the workplace in an effort to protect themselves from the rising costs associated with certain personal behaviors.
As a result of the expansion of discrimination lawsuits, we have come a long way from the days when romantic advances by superiors toward subordinates in the workplace were all too common, and indeed tacitly, “accepted” as part of the work experience. Now, gender and race neutral behavior is of paramount importance in the workplace. Accordingly, intra-office romances are generally prohibited not only between supervisors and their subordinates, but between co-workers as well.
Likewise, some types of behavior in and out of the workplace can prove costly. Smoking removes individuals from their assigned duties while they attend to their habit, losing valuable work time. Smoking is also associated with increased health care costs and lost productivity due to illness. Across the country employers are seeking to ban employees from engaging in certain activities during off-hours, such as smoking, to the extent permissible by law. For example, in January 2005, a company known as Weyco, an insurance benefit’s administrator in Michigan, adopted a new policy that all employees who smoked off the job would be fired. The employees were warned that they had until January 20, 2005 to quit smoking, with mandatory testing for nicotine intake to follow, and those employees who continued to smoke would be terminated. The question is, what are the limitations on a New York employer insofar as controlling behavior in and out of the workplace?
Privacy Interests
Clearly, an employer must take steps to prevent a hostile work environment to avoid liability under Title VII or under the New York State Human Rights Law. Toward that end, an employer should not tolerate off-color banter and potentially actionable ridicule in the workplace. The employer can also do more. As an employee’s privacy interests in the workplace are severely limited, particularly for private sector employees, no workspace or computer is safe from the watchful eye of the employer. In New York, the right to privacy is governed by Civil Rights Law ?? 50 and 51, as New York has no common law right of privacy. It has been held that New York’s limited right of privacy does not prohibit an employer from accessing an employee’s e-mail and other documents produced on the company’s system. Thus, employees should be mindful of their exchange of arguably discriminatory content through the company e-mail system such as sexually or racially suggestive jokes, comments or video transmissions that could potentially subject such employees to discipline. Such communications could eventually form the basis of a hostile work environment claim.
The private employer also has a right to access voice mail and search through company-owned property such as desks and file cabinets without restriction. However, pursuant to the Electronic Communications Privacy Act of 1986 (“ECPA”), an employer is prohibited from intentionally intercepting electronic communications. The employer may not wiretap its phones to “intercept” a contemporaneous phone conversation without the consent of at least one person to the recording which is also required under the New York State Wiretapping Act.
Activities Outside the Workplace
It used to be that a person’s home was his or her castle. Thus, what occurred at one’s home was beyond the employer’s reach. Throughout the country that concept is under assault. Employers in 46 states have the legal right to direct employees’ behavior outside the work place. For example, companies are seeing the benefits of not hiring smokers where the law permits. Union Pacific Corp. rejects smokers’ applications for employment in Texas, Idaho, Tennessee, Arkansas and Washington state at an estimated savings of $922 per year for each position it fills with a nonsmoker over one who smokes.
New York, however, still recognizes the rights of employees to light up on their own time. N.Y. Labor Law ? 201-d prohibits an employer from discriminating against an individual based upon participation in certain activities outside the workplace, such as the use of consumable products, legal recreational activities, union membership and political affiliations. In fact, the statute was established, in part, to protect smokers. Thus, a smoker may secure employment and smoke on his/her own time. Of course, an employer may establish a policy which does not permit “smoke breaks” beyond any standard work breaks afforded to all employees.
While smokers in New York appear to be relatively safe, that is not so for lovers under N.Y. Labor Law ? 201-d. For example, social activities of a romantic nature are not “recreational activities” protected by the Labor Law. In State v. Wal-Mart Stores, Inc., the Appellate Division noted that legislative history “evinces an obvious intent to limit the statutory protection to certain clearly defined categories of leisure time activities. Further, in view of the specific inclusion of ‘sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material’ within the statutory definition of ‘recreational activities’ application of the doctrine of noscitur a sociis compels the conclusion that personal relationships fall outside the scope of legislative intent.”
Thus, in New York at least, it would appear that the consumption by an employee of an unlimited number of Big Macs at lunch followed by a cigarette is permissible even though it might result in harmful after effects thus increasing an employer’s costs in terms of higher health care expenses and lost work time.