In the past few days, the issue of an employee's off-duty conduct and its impact on the employee's fit for continued employment has been a hot button topic in the news and on social media.
Many have questioned whether employers can or should consider conduct by an employee that occurs in the course of the employee's personal (i.e. non-working) time. While there is no one-size-fits-all answer to that question, as it depends entirely on the circumstances of the particular case, there is an increasing movement by employers to consider such conduct and to take steps, including disciplinary steps, to address the same.
As a result of factors such as the evolution of technology and the seemingly omnipresent nature of social media, the line between "personal time" and "work time" is becoming increasingly blurred. Employers are having to grapple not only with greater access to information pertaining to their employees' off-duty conduct, but also with increasing risks to reputation and other business objectives as a result of such conduct. Whether it be footage that goes viral, posts on Twitter or Facebook, or entries in personal blogs, employers are being forced to consider how to prevent adverse impacts on their business by (even well-meaning) employees and, where prevention doesn't work, how to address the fall-out.
In recent years, adjudicators have increasingly upheld disciplinary action (including terminations) where employees have acted in their personal time in a manner that is inconsistent with the expectations of their employer or antithetical to their job duties and responsibilities. For example, terminations have been upheld in cases where (i) a teacher made off duty racist and discriminatory comments against members of the Jewish faith, (ii) an employee posted insubordinate commentary and photos about coworkers and clients in her personal blog, (iii) two employees posted offensive, insulting and disrespectful comments about supervisors or managers on Facebook, and (iv) an employee posted sexist, misogynistic, racist, and generally offensive tweets on Twitter. (See our previous blog post on Twitter here)
While an employer's ability to take and ultimately uphold disciplinary action (including termination) will depend on a number of factors including the factual circumstances of the conduct in question, there are steps employers can take in advance to address (and hopefully prevent) problematic off-duty conduct, and where necessary, to support disciplinary action. For example:
- Employers should expressly address off-duty conduct in their workplace policies as well as in their workplace training programs, and should clearly set out their expectations as well as the possible consequences for conduct that is inconsistent with company values, an employee's job duties and responsibilities, etc.;
- Employers should ensure that they have clear policies with respect to the use (both professional and personal) of social media (including Facebook, Twitter, LinkedIn, Snapchat, blogs, etc.) and technology (including the employer's own IT systems and equipment), and should ensure that employees are trained on such policies and understand the rules and consequences associated with the same;
- Employers should, where appropriate, have employees sign off on policies, including codes of conduct, to acknowledge their receipt of and understanding of the same;
- Employers should consider including reference to compliance with all company policies as a term and condition of employment in offer letters and employment agreements; and
- Employers should develop strategies for monitoring social media, responding to viral news items (from both an employment and public relations stand point) and dealing with employment-related fall-out so that it can address the same in a timely, measured and (whenever possible) consistent fashion.
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