None of Your Business (Interest): The Argument for Protecting All Employee Behavior with No Business Impact – Note by Jason Bosch

From Volume 76, Number 5 (July 2003)

At the beginning of the twentieth century, major American companies had entire departments staffed with hundreds of—sociological specialists who were charged with monitoring the private behavior of company employees—often in their homes—to make sure they did not drink too much, had appropriate sex lives, kept their houses clean, and used their leisure time properly. Worker privacy and autonomy has made tremendous advances since that time, but even today employers continue to take actions against employees whose off-the-job behavior they find objectionable. Recent examples of employee—offenses include cohabitating with a partner outside of marriage, smoking, drinking, motor-cycling, and even having a high cholesterol level.

The baseline presumption at common law is that employment is at the will of either party. Even with the modern dilution of this doctrine and the many exceptions that have been carved out by courts and by statute, employers still have the ability to discharge, or constructively discharge, an employee for doing anything not protected by a specific statute or not included in the nebulous protection against violations of—public policy. This broad deference to employers’ judgment in employment matters is a result of judicial reluctance and inability to deal with issues relating to business efficiency and job performance. At-will employment encourages the flexibility and freedom needed for managers to make efficient decisions that best help their businesses compete in the marketplace. Certainly there is a consensus that managers know much better than judges what policies are needed to foster peak performance from their workforce. However, employees should not have to relinquish autonomy over every aspect of their lives just to get or keep a job. Employers have a vested interest in controlling those aspects of employees’ lives that reasonably affect the employees’ performance on the job, but that does not justify giving employers carte blanche to control every aspect of their employees’ lives. This Note argues that employers should only be able to take employment actions against employees for behavior that sufficiently impacts legitimate business interests.



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