T his is not a simple world in which employers concern themselves only with their employees' conduct and performance while on the job. Indeed, given the risks inherent in doing business, it is not surprising that employers attempt to exert control over many factors external to the workplace, factors they believe might affect profitability. Toward this end, many employers attempt to monitor and regulate the off-duty conduct of their employees, including activities of a very private and personal nature. For instance, employers often have legitimate interests in their employees' off-premises personal relationships with their coworkers, outside employment, and outside projects or interests with potentially competing elements. Thus, many employers have adopted policies proscribing or severely restricting their employees' off-duty, off-premises activities such as moonlighting, setting up a competing business, or otherwise working for a competitor during employment, and dating coworkers, supervisors, or subordinates.
Such policies have been challenged in court, but the law with respect to the monitoring and regulating of off-duty conduct has not been well developed in most jurisdictions. The topic, however, is of increasing concern, given the risks of running a business, the employer's desire to protect its trade secrets, and other valuable assets that allow it to maintain its competitive edge, and the increasing frequency of sexual harassment and discrimination lawsuits filed by current and former employees. While still in its development stage, the trend appears to be moving in the direction of protecting the employees from such perceived "intrusions" into their off-duty activities. Employers thus must examine closely their current policies and practices, and consider the issues described below.