California Labor Code section 96(k) makes it unlawful for an employer to discriminate against an employee for their lawful conduct occurring during non-working hours. Discrimination includes any changes in the terms or conditions of employment, including loss of wages or benefits that may occur as the result of demotion, suspension, or discharge from employment. There is an exception if the parties have a signed contract to protect the employer against any conduct by the employee that is in direct conflict with the employer’s “essential enterprise-related interests.”
Lawful conduct protected by this statute may include:
- Policies such as non-fraternization policies which regulate employees’ relationships outside of work, including romantic and dating relationships, unless they are narrowly-tailored to address conflicts of interest that may arise from the relationships in the workplace;
- Attending political rallies, protests or other types of employee activism;
- Social media use and postings; and
- Moonlighting, or working for another employer.
Employment discrimination in violation of Labor Code section 96(k) would allow an employee to bring an action for wrongful terminaton, and the recovery of lost wages and benefits, emotional distress damages, and, in some cases, where the conduct is perpetrated or done with the consent of upper management, punitive damages.