Personal Business While on the Clock: How Much Is Too Much?

Workplace

(Photo Credit: Bruce Mars from Pexels)

As an employer, one of my expectations of employees is that they are actually working the time for which they are being paid.  That’s hardly a challenging concept to grasp, and one which every employer I’m aware of would second.

On the other hand, I – and most other reasonable employers I’ve encountered – recognize that people are not robots. Distractions and personal lives aren’t left at the workplace door and it is unrealistic to mandate that employees never conduct personal business briefly while on the clock.

For the sake of your security clearance, how long is too long?

The measures of reasonableness thus become what the employee is doing with that time, how frequently, and for how long. There is a spectrum and here is how I’ve personally seen it play out within the context of security clearance denial and revocation cases:

At the extreme end of the spectrum is blatant time card fraud in the form of countless hours reported worked that were not. If discovered, intentional time card fraud not only carries potential criminal penalties, it also is a quick ticket to security clearance problems and – if done in the federal workplace or on a federal contract – debarment from government service.

Most reasonable people understand what time card fraud looks like so I won’t belabor that example. But on the other end of the spectrum is the employee who occasionally spends five minutes checking personal email, stock picks, or the weather online. Kept to a couple times per day and a few minutes per instance, I wouldn’t have an issue with that as an employer and I think most employers frankly expect it in today’s digital world. (NOTE: Check your individual employer’s policy before making assumptions). I’ve certainly never seen anyone’s security clearance denied because of such behavior.

Got a Side Hustle? Are You a Social Media Fiend?

In the middle of the spectrum, however, are the social media fiends and those who are running a side hustle (e.g. selling things on eBay) from their phone. This is where the real problems lie.

Oftentimes I find that people who fall into this “gray area” become increasingly emboldened over time and eventually reach the point that their personal business begins to adversely impact their work performance. When that happens, its not uncommon for managers and company human resources officials to review records of employee computer use to see what, precisely, the employee is doing with his or her time. Those records can be damning evidence of workplace misconduct – I’ve seen them used on several occasions in security clearance cases – and business records can be introduced into evidence without authentication (meaning that they are entitled to a presumption of accuracy that can eviscerate most available defenses). Perhaps the worst situation is one where the employee is running a side business on the employer’s time, which I’ve written about previously. It happens with surprising frequency.

The bottom line is simple: those who act how they would expect someone they’re paying to act are unlikely to encounter this issue. But those considering playing fast and loose with the time clock may be in for a nasty surprise at some point.  Always act on your business computer, cell phone, and other electronic devices like your employer is watching. They very well may be – and it’s generally legal.

 

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com

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