Dealing with off-duty conduct
Understanding the consequences, legally and from a public perception perspective, is one way to manage potential risks
Oct 27, 2015
By Lorenzo Lisi
Who isn’t aware of the Jian Ghomeshi saga? Or the dismissal of the Hydro One employee for making lewd comments to a television reporter at a Toronto FC game (which I won’t repeat) which went viral when the reporter took him on? Or even anecdotes of fellow employees who ran afoul of one employer rule or another by what they posted on Facebook?
While the actions of employees outside of work have always been a cause of concern to employers, and have been on occasion the basis for discipline and termination, social media has raised the ante — conduct which in the past could have been overlooked or possibly forgotten is now often in the public domain. And as the line between private and public life blurs, employers often feel the need to respond.
Clearly this was the case in the Hydro One case, which has yet to be decided at arbitration (the employee was a unionized employee). A phrase (again, I won’t repeat it) which had made its way across the Internet and was known for its shock value was used while a City TV reporter was conducting an interview. The combination of the crass nature of the phrase and the reaction of the reporter spread like wildfire across social media and Hydro One felt compelled to act by terminating the employee not for something he did at work, but for his comments during his personal time off.
I have my doubts about the sustainability at arbitration of the termination, but that’s not really the point. Questionable off-duty conduct by an employee, which can be magnified once it hits social media, can place employers in a difficult position. How to manage the fallout and protect the good name of the business from potential backlash is not the only problem for employers. They also have to be concerned about possible liability if they discipline or terminate the employee.
So what to do when an errant Twitter message or YouTube video of an employee engaging in improper (sometimes very improper) behaviour is released? It is trite to say but, first and foremost, employers have to quickly review, digest and determine the impact of the conduct to their business. To do so, a proper investigation is critical. Recall in the Ghomeshi case that it was not only allegations by a former girlfriend that were explosive, but Gomeshi’s own post on a Sunday afternoon after the allegations surfaced which launched the case into the social media stratosphere.
The legal threshold in proving cause in these kinds of circumstances is a high one. To justify a termination for off-duty conduct, the employer must demonstrate real business harm that could result from the conduct. For example, showing that the conduct of the employee harms the employer's reputation or product, or that the employee’s behaviour rendered it impossible for her to perform the duties of her job satisfactorily.
It might also be the case that the off-duty conduct led to a refusal, reluctance or inability of other employees to work with the employee or the employee has been guilty of a serious breach of the Criminal Code, which might significantly impact the general reputation of the company.
These are the considerations when determining whether or not the conduct might justify “just cause” at law, but employers can mitigate some of these risks in advance, which makes the investigation and decision-making process quicker and more predictable when an off-duty conduct issue in the media arises.
Creating policies for employee use of social media — both personally and professionally — and making sure employees are trained on these policies and understand the consequences of a breach, especially with respect to their use of Facebook, Twitter, Instagram, LinkedIn and the like, is an important piece to the puzzle.
Guidelines, procedures and policies need to be clear, communicated to employees in advance and consistently enforced. A policy isn’t worth the paper it’s written on if an employer doesn’t enforce its provisions consistently. Clarity and the intention to enforce should start from the beginning of the work relationship, with a reference to the policies in employment agreements and policies potential employees are asked to review. Abiding by these policies and making it clear that conforming with these policies is a condition of employment is important.
Social media, and employee use of social media, is here to stay — the genie won’t go back into the bottle. Employees of all ages, and particularly younger workers, live on social media. Over-reacting can often be as undesirable as doing nothing at all. But for employers, understanding the consequences, legally and from a public perception perspective, is one way to manage the potential risks.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.