....
What are your thoughts? Could/Should all/any companies create or beable to create contracts of this nature that would be legally binding? I could understand a contract of this nature if you're salary, hence, always "on the clock" but, I am generally refering to time card punching jobs/work.
I see two different questions. What is permissible? What do we think should be permissible?
First, reality as best I know it.
The current legal answer is, "It depends." For example, the Utah State legislature is currently considering a bill to ban "non compete" clauses in most cases. In some States, these clause are already non-enforceable. In other States, they can be enforced. And it varies from industry to industry.
A news anchor or other on-air talent will often sign a non-compete clause as part of his employment contract. As an example he gets a 5 year contract and agrees that for 2 years after leaving station X, he will not work as on-air talent for any other station in the same market. This doesn't sound too onerous. Ditto under similar conditions for executives at almost any company. They get an employment contract guarantee employment (barring major violations of duties) for some number of years, and as part of that agree not to go to work for any competitor for a modest time frame after leaving their current company.
But the use of non-compete clauses is spreading and has become common (where permissible) in the tech industry, even without employment contracts. As a condition of getting hired into an at-will position, you have to agree not to work for any competitor for a year or two after leaving or even after being laid off.
It is said that Henry Ford would pay a premium to any employees who would agree to abstain from alcohol in their off time. I think was based on some combination of personal morals and a belief that healthy employees were more productive while at work.
A growing number of companies are providing an "incentive" for workers who keep their blood pressure, cholesterol, weight, or other health metrics within some acceptable range. Again, this is based on the premise that healthy employees cost less for insurance premiums, have fewer sick days, and are more productive. It will be interesting to see how far this can go before we get laws limiting it. After all, it can get hard to distinguish between an "incentive" for those who meet the targets and a "penalty" for those who don't meet the targets; and when do you cross the line into unfairly discriminating against those with pre-existing conditions or even ADA protections?
Back to the talent industry, it is common for companies signing endorsement contracts with sports figures or other celebrities to include clauses about any conduct that casts the company in a bad light. Punch your girlfriend, get a DUI, make racist or politically inappropriate remarks and your million dollar endorsement deal with Nike is likely to evaporate under such clauses. Ditto your lucrative endorsement deal with fast food when you are caught sexual abusing little boys. And really, who could object to such clauses in these cases.
Where I think we start to get nervous is when a company presumes to impose conditions that have no seeming connection to work. It starts to look like a backdoor end-run around anti-discrimination protections in some cases. "We are equal opportunity and don't discriminate based on race. But we require employees not to associate with the NAACP or La Raza."
Banning off the clock alcohol use looks like imposing personal religious or social views on others. A few hours after imbibing, all alcohol clears the system and has no discernible effects on job performance. Similar bans on marijuana and many other drugs have been justified on the basis that if I can detect the drugs with a test, it might be having some effect on you. Or at the very least, if you use such drugs off the job, you might use them on the job or just before coming to work and that would create a hazard. And they are illegal, which I think has been the real difference between alcohol and other drugs. It will be interesting to see what happens as pot becomes more socially accepted and legalized.
But put in other terms, how many of us want our pilot or brain surgeon to show up to work after a weekend of using pot, heroin, or other recreational drugs? For that matter, if we knew he routinely spent the weekend getting hammered on booze? In theory, all we care about is on-the-job performance. But in practice do we really believe the guy who gets slammed every weekend is likely to perform as well during the week as the guy with a more moderate lifestyle?
As for other employment conditions, consider the myriad laws that limit on-the-clock conditions. Employers must maintain safe employment conditions. They are not legally allowed to violate OSHA regs regardless of what contracts they claim to have negotiated.
What do I think should be allowed?
1-I think this is an area where State level solutions are better than one-size-fits-all federal laws in most cases. Some diversity among the States is a good thing.
2-I think companies have a right to limit conduct that would cast the company in a bad light. I've spent my 20 year career being very careful to never mention my employer, never wear any of my company logo shirts, etc, in any political setting. My legal political activity is not my boss's business....so long as my boss is never associated with such activity. He has as much right not to be associated with my conduct as I have to freely engage in legal political activism.
3-I think we'd avoid and eliminate a host of conflicts if we'd disassociate health insurance from employment. Hobby lobby should not be expected to pay for birth control or aborficants that offend the religious/moral beliefs of the owners. Hobby lobby employees should have real options for insurance that comport to their morals rather than those of their employer. It seems perfectly reasonable that employers should be expected to cover the extra insurance costs for employees who choose to be obese or to smoke. But should some increased risk of future health problems be a bar to employment today?
4-I generally favor private contracting...when there is a level playing field such as between on-screen/on-air talent and media companies. If you can command a multi-million dollar salary with a guaranteed term of employment I think you can either negotiate for yourself, or hire really good agents/lawyers to protect your interests. So no compete clauses, morality clauses, limits on your weight or your hair style, limits on your public comments, etc, etc, can all be negotiated on a level playing field among those who have roughly equal power.
But I also recognize the disparity in many relationships. With good reason we don't allow prison guards to have sex with inmates, shrinks don't get to date their patients, and teachers don't get to have sex with students. Legally, it is risky for bosses to have relationships with subordinates.
If you're a punch-the-clock wage-slave who needs work, you are likely not in a position to negotiate over grossly unjust employment terms. You need a job and an employer may well be in a position to take advantage of you.
I favor parking lot preemption that prevents employers from enforcing no-gun policies in private cars parked in employee parking lots. The boss isn't going to assume liability for your welfare when you drive home and so has no right to limit your lawful possession of a firearm during that drive. I oppose non-compete agreements for at-will employees. Right-to-work better mean right to work. We have plenty of laws to protect IP without keeping a guy from working in his chosen field. And if my off-hours conduct doesn't directly cast my boss in some bad light or adversely affect my on-the-job performance, I don't think it is any of his business.
In brief terms, I think in certain limited cases an employer ought to be able to impose off-the-clock employment conditions. But in most cases, I think such contracts should be non-enforceable under the "contrary to public policy" doctrine.
Charles
