Are some employers going too far?
By Brian Kreissl
While it isn't really a topic I've dealt with directly in this blog, there has been just too much going on lately with respect to off-duty conduct and its impact on the workplace for me to ignore the subject.
Because I have two fellow bloggers covering employment law, I’m not really going to cover the legal side of this debate here. Suffice to say, the law recognizes certain situations where off-duty conduct can give rise to disciplinary sanctions, up to and including termination of employment.
Such situations include where an employee’s conduct has a negative impact on the employer's reputation, where the conduct in question renders it impossible for the employee to perform the job in question or where other employees refuse to work with the individual.
Aggravating factors that make it more likely for discipline to stick include whether or not the employer has a policy against the type of conduct in question and whether there was any connection with the organization or workplace in any way (for example, something that happened at a work function, in a company vehicle or using a company-provided laptop or mobile device).
Some recent examples
There have been many recent examples here in Canada where off-duty conduct had a spillover effect into the workplace. These include the following:
- The Jian Ghomeshi affair (Ghomeshi was, of course, recently acquitted of all charges against him in a criminal trial for alleged sexual assault and choking, although he faces a second trial).
- The case of the Hydro One worker caught on a CityNews camera at a soccer game justifying sexist chants directed towards female journalists.
- A retail worker who was fired for making vile comments on Facebook about a teenage girl who had just committed suicide.
- Two Toronto firefighters terminated for making sexist tweets.
- A Quebec teacher who was fired for being in a pornographic film several decades earlier.
- The Ontario Hockey League (OHL) referee who was terminated for making negative tweets about the women of Sault Ste. Marie.
Some employers becoming too intrusive
I totally agree employers should be able to discipline or discharge employees for certain inappropriate off-duty conduct — particularly where such conduct has a negative and serious impact on the organization or has the potential to do so. However, it concerns me just how intrusive some employers are becoming when it comes to employees’ private lives these days.
For example, I fail to see why so many employers believe it’s such a big deal if someone has a few photographs posted on Facebook showing them with a drink in their hand. I personally enjoy a few drinks in my spare time and have even been known to tie one on occasionally. But that doesn’t mean I have a drinking problem, and it certainly doesn’t mean I would ever let alcohol negatively impact my work performance or do anything foolish like drinking and driving.
Of course, employment lawyers, at least in Canada, tell us social media background checks can be fraught with legal risks — particularly when it comes to revealing information related to the prohibited grounds of discrimination under human rights legislation. For example, finding out someone is a heavy drinker may reveal that the individual is an alcoholic, which is protected as a disability under Canadian human rights legislation.
That’s good advice, but I still think some employers are intruding too much into employees’ personal lives these days. Even having policies stipulating that people should preface every online comment they make with wording such as, “The thoughts and beliefs expressed in this tweet are entirely my own and do not necessarily reflect the views and opinions of my employer, XYZ Company” seems excessive at times.
Most people have the common sense to understand when someone is speaking on behalf of the organization, and they also understand the difference between fact and opinion. There should also be a distinction between comments made on personal networking sites such as Facebook and those on professional networking sites like LinkedIn.
There will always be situations where people go too far or when it’s absolutely necessary to make a distinction between someone’s personal opinion and that of their employers. However, I wouldn’t want to see a situation where we’re all turned into corporate automatons and are afraid to speak our minds or share personal details like mentioning a party we attended last weekend.