Tuesday, October 20, 2015

Ohio’s attempt at an off-duty conduct law creates many more problems than it solves

It has become increasingly difficult to separate our private lives from our professional lives. Technology bleeds into every nook and cranny of our existence, and allows the workplace to stretch beyond the traditional 9-to-5 into a 24/7 relationship. Partly for this reason, 29 states have what are known as off-duty conduct laws — laws that protect employees’ jobs from adverse actions based on their exercise of lawful conduct outside of the workplace. Think smoking, for example. In these 29 states, it is illegal for an employer to fire an employee who smokes away from work. The employer can still prohibit smoking at the workplace, but when the employee is on his or her own private time, the conduct is off limits to the employer.

Ohio is not one of these 29 states. Senate Bill 180, however, is looking to change that.

Senate Bill 180 would prohibit an employer from taking an adverse action against an employee, without just cause, for that employee’s exercise of a constitutional or statutory right within his or her private real property or motor vehicle. Amazingly, this pro-employee legislation was drafted by a Republican senator, and all seven of its sponsors are also Republicans. Why are eight Republican senators supporting pro-employee legislation? Because it is aimed at protected employees’ gun rights. Yet, the bill does not mention firearms by name; instead it speaks of any exercise of constitutional or statutory rights.

What types of rights might this bill protect? For example, in two weeks Ohioans will go to the polls to vote on the statewide legalization of marijuana. If SB 180 becomes law, however, and marijuana use becomes legal, employers will not be able to terminate an employee for the use of this legal drug outside of work. And while an employer will still be able to fire an employee who is high on the job, SB 180 creates a difficulty in proof. Marijuana stays in one’s system for a month or longer. How will an employer have any drug-testing confidence to fire an employee if a drug screen cannot differentiate between on-the-job use versus off-duty use?

We can debate the merits of off-duty-conduct laws. Some will tell you that employees should have the freedom legally to do what they want, when they want, during their personal time. I think that in a 24/7 world, employees need to hold themselves accountable for their own actions 24/7, and should expect their employers to do the same. Regardless of your opinion on this philosophical issue, we should all agree that SB 180 creates many more problems than it solves, and, in its current form, has no business becoming the law of Ohio.