Lifestyle statutes are laws that protect an employee 's lawful off-duty conduct. California, Colorado, New York, and North Dakota have lifestyle statutes that protect employees for any lawful activity off-duty. In addition, Connecticut protects employees ' off-duty speech. These statutes vary in their protection and the courts have interpreted these broad off-duty protection statutes differently with little precedent with respect to Facebook. In fact, the Supreme Court indicated that courts should be reluctant to establish privacy principles in this area. The protection offered by the lifestyle statutes is in broad language, however, in effect through case holdings, it is actually tremendously limited. There are several reasons
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“The Free Speech Act was enacted to ‘remedy the disparity’ between public sector employees ' First Amendment free speech protection and private sector employees who are not given First Amendment protection.” One of the limitations is that it does not protect prospective employees, rather it protects existing employees from discipline “’on account of the exercise by such employee of rights guaranteed by the [F]irst [A]mendment to the United States Constitution’ so long as the ‘activity does not substantially or materially interfere with the employee 's bona fide job performance or the working relationship between the employee and the employer.’” This is easily thwarted by employers as they could argue the “employee 's speech rose to the level of required interference as to negate the employee 's protection from the Act.” Lastly, the limitation of this statute is that it only protects speech and does not offer protection for any other off duty conduct including information posted on a job candidates Facebook …show more content…
California Labor Code section 96(k) protects lawful conduct occurring during nonworking hours away from the employer’s premises. This law appears to be broad, however, it is restrictive. In Barbee v. Household Automotive, the Court held that 96(k) did not create a substantive right; instead, it was a procedure for the Labor Commissioner to uphold already recognized constitutional rights. This essentially means the California lifestyle statute only protects previously “recognized constitutional rights.” Thus, based on state common law, this statute is inadequate in protecting applicants from employers screening of their Facebook accounts since it will not protect an employee 's online behavior and conduct outside of
“The Free Speech Act was enacted to ‘remedy the disparity’ between public sector employees ' First Amendment free speech protection and private sector employees who are not given First Amendment protection.” One of the limitations is that it does not protect prospective employees, rather it protects existing employees from discipline “’on account of the exercise by such employee of rights guaranteed by the [F]irst [A]mendment to the United States Constitution’ so long as the ‘activity does not substantially or materially interfere with the employee 's bona fide job performance or the working relationship between the employee and the employer.’” This is easily thwarted by employers as they could argue the “employee 's speech rose to the level of required interference as to negate the employee 's protection from the Act.” Lastly, the limitation of this statute is that it only protects speech and does not offer protection for any other off duty conduct including information posted on a job candidates Facebook …show more content…
California Labor Code section 96(k) protects lawful conduct occurring during nonworking hours away from the employer’s premises. This law appears to be broad, however, it is restrictive. In Barbee v. Household Automotive, the Court held that 96(k) did not create a substantive right; instead, it was a procedure for the Labor Commissioner to uphold already recognized constitutional rights. This essentially means the California lifestyle statute only protects previously “recognized constitutional rights.” Thus, based on state common law, this statute is inadequate in protecting applicants from employers screening of their Facebook accounts since it will not protect an employee 's online behavior and conduct outside of