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Whose Business is it Anyway?!


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Wellness Programs Making You Sick?



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HR & the Law in the News
October 2014, Volume 13, Issue 10
Hello again and welcome to the latest edition of FiveL Company's monthly e-newsletter! Check out the upcoming events including this month's webcast "Lifestyles Discrimination" and a full-day workshop on Employee Handbooks in Columbia, MD - pre-approved by HRCI for 6.5 HR credits. Click here for a full listing. 
Whose Business is it Anyway?

When is an employee's personal life any business of the employer? Is it not, in fact private?  The attention given in the last several weeks to a renowned NFL player has had me and so many others pondering these questions.  So I try to quell my heart with an objective head.  For me this requires a comparative review to lend some objectivity to these very emotional and compelling issues.  I hail from Maryland and will use our local history here to provide some examples:

  • A local news anchor is arrested for soliciting a lewd act from an undercover police officer; the anchor is suspended and subsequently returns to the same anchor job.
  • A local sports caster admits to and is convicted of 1st degree burglary, stealing prescription pain killers from the home of a neighbor, a woman with cancer. The sports caster is fired and hired by another station the same year.  
  • A local politician in a neighboring jurisdiction is convicted of soliciting a prostitute and using illegal drugs; the politician pleads entrapment. The politician is subsequently re-elected.

It's the power of the play.  It's about what we think, know and see.  We thought we knew an NFL player hit his fiancée. He was charged with aggravated assault and given probation with no jail time; a penalty recognized by a superior court judge as befitting the crime.  Subsequently, he was suspended from two regular season games. But the cacophony did not hit its peak until we saw the hit as it played over and over again in the media. The facts had not changed but the picture had. For some it became an issue of now what he did, but now how he did it.  So the two-game suspension was revisited and modified to an indefinite suspension. So he may return to play in the NFL just as another NFL player did, one whom a judge noted had engaged in hanging and drowning dogs that did not perform well in the dog fighting ring that he funded.  

So when are the acts of an employee in his or her personal life any business of the employer's?  Let's face it.  Most of our employees are not famous or in the national public eye.  But they are in the eyes of those in our local communities. In fact, that is often how we hear about what our employees are doing during non-working time.  So here are some real-life scenarios that I've come across in my years:

  • a customer complains to an employer that an employee is an exotic dancer at a local adult night club; she is offended and may stop doing business with the employer;
  • an employee is convicted for possessing and selling illegal drugs out of her home;
  • an employer finds an anonymous note urging caution about one of its employees whom the note alleges is physically abusing his domestic partner and has a criminal record. The employer runs an authorized background check and finds the employee was, in fact, convicted of attempted murder and served nearly ten years in prison before they hired him;
  • an employee complains that she is uncomfortable working with a coworker who "swings" with his/her spouse and engages in group sex on the weekends; and
  • an employee publicly posts on Facebook activities related to the employee's illegal use of marijuana on the weekends.

Many of these issues tug at our heart strings, some don't, and some pull us in multiple, diverse and opposing directions. Employers are accountable to the business of the business but that includes the people doing the business as well.  So how do we balance head over heart?  I find some solace in the US EEOC's guidance.  Ask yourself, is the issue that's troubling you job related and consistent with business necessity?  But even this standard is a moving target as the definition varies depending upon what protected status is being assessed e.g., disability, race, criminal history, etc. 


Generally however, ask yourself, "So what?" What does X have to do with my business, when X is something the employee had done on his or her own time and not using any company property in the process.  Take the customer who is disgusted by the fact that an employee is an exotic dancer. Should the employer tie this customer's preferences to employment decisions when those preferences might adversely impact the employer's bottom line?  Before you answer that, change the fact pattern.  If the customer said she was disgusted by the fact that you employ persons of a certain color, race, religion or national origin would you let that drive in any part your employment decisions?  I hope not. If you were thinking "Yes" or "Maybe" or my favorite, "It depends" read this first or this or this.


So maybe I'm covered in mud having poorly navigated this slippery slope, but there are my two cents. As you can read, I have more questions than answers. But may we all pause before we judge and ask if we have made an objective assessment of what an employer should do about an employee's personal, even if not private, actions and for what we want to be held accountable as employers in the future.  

Upcoming Events
Next Webcast:
Lifestyles Discrimination
October 22nd, 2014 10:00 - 11:15 a.m. EST

Is an individual's personal conduct ever an employer's business? Even when it is conducted off company time and property? And why does an employer care; what are the business drivers tying personal conduct to employment decisions? Join this interactive program as we review the current legal, legislative and regulatory trends related to lifestyles discrimination including and not limited to: 

  • Use of lawful products (alcohol, tobacco, legal use of marijuana)
  • Health & wellness (obesity, smoking cessation)
  • Moonlighting / Occupation / Hobbies
  • Arrests and convictions for crimes against people (domestic violence) versus property
  • Slow credit, bad credit and bankruptcy
  • Familial status / family responsibilities
  • Political Opinion / affiliation
  • ...and more 
To register just click here.


$49 per person and pre-approved by HRCI for 1.25 HR credits. 
Group rates available. Click here for more information.


Upcoming Events: Click here for a full listing of public and private speaking engagements, seminars and conferences.

Upcoming Events - Public Seminars
FALL into an upcoming educational program or event?! Whether you're on the road or in your office, in-person and virtual educational programs are coming your way!  Check 'em out!
Thursday, October 16th, "Managing Major Issues During Employment" hosted by NAMIC - webcast.

Wednesday, October 22nd, "Lifestyles Discrimination" - FiveL's monthly webcast, see above. 
Tuesday, October 28th, "When All Else Fails: Terminating the Employment Relationshiphosted by NAMIC - webcast.

Join Us: Friday, October 31st, "Employee Handbooks: A Workshop" Full day program, Columbia, MD. HRCI pre-approved for 6.5 HR credits. Click here for more info.
Upcoming Private Client Training Programs
  • "Maintaining an Inclusive Workplace"
  • "HR and the Law for Managers" 
  • "Managing for Performance Improvement" - 3 sessions + Train the Trainer
Click here for a full listing of upcoming events. 
Want more information about FiveL Company's Train the Trainer options?  Click here
Wellness Program Making You Sick?
On August 20th the US EEOC filed a lawsuit contending an employer's wellness program violated the Americans with Disabilities Act (ADA). The charge alleges in part that the employer's program imposed "enormous" penalties against employees who declined to participate, namely by shifting 100% of the cost of the employee's health care premium to the employee.  

Wellness programs have receive more attention (good and not-so-good) over the law year or so and may pose the risk of one or more legal challenges under the Americans with Disabilities Act (ADA), Genetic Information Non-Discrimination Act (GINA), HIPAA and more.
The EEOC has not yet taken a formal position as to whether an employer may offer an incentive for participation or, if so how much. The concern may be that an incentive is simply the reverse of a penalty; those who participate get the reward so the employee is effectively penalized if s/he does not participate. They touch on this issue in one opinion letter.

The EEOC also held a public hearing in May of 2013 on these issues.  Be sure to work with your company's employment counsel to review existing your existing or prospective wellness program to avoid these legal pitfalls. Stay tuned as we may anticipate some regulatory guidance from the EEOC in the (near?) future.

This newsletter does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on employment matters. 


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