In the United States, can an employer take adverse action based on information gleaned from non-work resources?

Question

I am good friends with the Director of IT in my firm. He recently let on that he knew I was looking for alternative employment, because they are logging my AIM instant messaging application. Although I restrict my AIM usage to after hours, the scraper they use (since I do attach to the network with the same box), is logged. Thankfully, I have good relations with him, and he and I both agree that our company is insane.

Unwarranted surveillance aside - does outside evidence that a person is looking for alternative employment in the United States - constitute valid grounds for dismissal in an at-will contract?

Note also, there are other ways that an employer can find you are looking - signing up for certain job boards, Linked In, etc... that don't use company resources. In these circumstances, can they take action based on personal time activities?

In other words, do I have any leg to stand on if they fire me?

Answer 1

If you are an at-will employee, the employer can terminate you for any reason (other than a handful of discriminatory reasons) or no reason at all. An employer would be well within their rights to fire an employee that was looking for another job.

Of course, most employers realize that most employees are at least open to the possibility that something better will come along. And firing an employee just for looking at other positions tends not to be a very economically reasonable action-- the company is guaranteed that they'll have to incur the cost of replacing the employee, they leave the position open while they look, they lose the customary two weeks notice to transition tasks to other employees, and arbitrary firings tend to negatively impact the morale of the remaining employees.

Answer 2

We log the full text of all the mail that is sent and received through our server. In the past I have looked through the logs for the names of specific employees. They sign a piece of paper on their first day titled Company Email Is Not Private and Personal that encourages them to use hotmail or gmail or whatever for their personal stuff and tells them that we might read the logs for whatever reason we want. It's been probably a decade since I've done so, but that's about who works for me now, not about the practice.

Signing the paper and knowing we might be reading doesn't stop people from putting stuff in their business email that they don't want anyone to read. (Not all of it new-job related: some of it I would rather not have read but you don't realize you've stumbled into certain things until after you've read them.) On more than one occasion I have been made aware that someone is looking for a new job. I've just used that opportunity to get my house in order in terms of replacing them. Small companies don't hire very often so stuff like writing a job description, looking for places to advertise and so on can take a few days or weeks. Then when they quit, I'm ready.

Only once was it a surprise to learn a new job was being sought. I mean, why do you think I'm searching the logs for that name, anyway? I would be far more worried about what made someone look through the logs and check on you than about what they will do now that they know. If you've already decided to go, at least you won't feel guilty that they'll be left in the lurch. If you were just wondering "is this the best I can do?" be prepared for the fact they already noticed you weren't happy, or perhaps weren't contributing all that you were expected to.

Answer 3

I belive the AIM issue has been addressed (it BTW is not unwarrented surveillance, you used company assets to send the AIM messages, they are entitled to monitor their own assets). Let me address paragragh 3 somewhat.

Can a company fire you for information they found from sources outside the workplace. Certainly they can and often do. People are fired for a multitude of things not found offically through the workplace such as:

Publicly embarassing customers or company - there was a recent case of a waitress who got fired for posting on the Internet a note from a pastor commenting on tipping. Others have been fired for blog entries or Facebook posts. Assume no privacy for anything you write or post on the Internet. If you would not want your manager to see it, don't post it. This goes for other types of writing as well. It's less common to get fired for a book you wrote, but it could happen.

People have been fired for getting arrested, for hitting on the CEOs wife in a non-work setting, etc. People have been fired for their politcal beliefs or their religious beliefs. In an at will state, they don't have to say why you were fired, so these thigns are becoming more common. I read storeis inteh last election of people being fired for having a bumpersticker on their car for a political party that managment did nto support. Some of this can be fought in court, but it is often costly and very time-consuming, so usually the companies get away with this stuff. The smart ones never give this as the official reason.

Getting fired for someone finding out from outside sources that you are looking for a new job is not terribly common. However there are times when it might be riskier such as:

• when the boss is a control freak
• when a large bonus is due to be paid soon
• when a perfect replacement for you just happens into their lap (if it won't cost much effort to replace you, you become much more replaceable)
• when they are getting ready to start a new major project with you in a key role
• when they are already thinking of replacing you
• when there is a layoff coming up

On the other hand, you can't avoid looking for a new job because someone might find out about it. If you want to leave, then look for a new job. JUst be a bit close-mouthed about who you tell and don't let the new company check with the current company in a reference check. And don't use comapny assets to look for new jobs again.

Answer 4

I don't understand, are they cool with AIM at work or are they not? If they weren't happy about employees using AIM on work property then they should just block it.

Not blocking it and logging communications through it is sometimes done however if the employee potentially needs it for work purposes but could be abused for personal use, which is not terribly unusually. They typically keep logs of this stuff in the event of an incident or a complaint, or if they are otherwise just looking for legitimate reasons to lay somebody off.

To actively search through your logs specifically is a warning sign to me, even if they didn't find anything interesting at all. It either strikes of a voyeuristic perversion on the part of your manager or perhaps they had an agenda to start looking in the first place, which is something I would worry about.

Generally yes the employee can use monitoring logs as proof for firing with a reason, but the important thing is that in nearly all states in the US, they don't need a reason.

If they reprimand you because of this then they were probably looking for dirt on you anyway or got complaints about you. Maybe they needed it as an excuse to cut your perks or pay.

If they let you go with reason citing workplace logs as proof, then they are banking that you will not sue them or that you would lose if you do. Why would they do this? They can choose not to pay for unemployment if they terminate without reason. If such an event were fair could not be determined by myself or anybody on this site as IANAL.