One of my very first clients when I was a rookie lawyer asked me a question that I will never forget: "Can I be fired for what I do when away from work?" He had just been fired, and his employer felt there was a very good reason. He and a group of friends from work had filmed themselves acting out a scene from a Hollywood movie. This in itself was not the problem – it was that they filmed themselves while still dressed in their uniforms from work. When their employer found the video posted online (for everyone to download and see), they were all fired.
At the time, I thought that their employer was surely mistaken, but I quickly learned that employees can be disciplined for what they do when away from work. Employers have the technological means, and often the inclination, to monitor behaviour that occurs away from the job. And when they believe that off-duty behaviour poses a problem to their own interests, employees should not be surprised when it follows them back to their desk.
So when does what you do away from work become part of your employer's domain?
– Criminal behaviour unrelated to the workplace but which nonetheless injures an employer's interests can amount to cause for dismissal. In one Ontario case an employee was terminated for cause after being charged with possessing child pornography even though he was not yet convicted. The dismissal was upheld because the court agreed with the employer that the negative publicity surrounding the criminal charges brought the company's reputation into disrepute.
– Similarly, in a more recent Ontario case, the Court of Appeal ruled that an educational institution had the right to access and search a laptop computer that it gave to a teacher because he had images of an underage student on his hard drive. The court noted that the teacher's right to privacy over the contents of the computer was qualified because the school had a written policy allowing it to conduct the search. As a result, employees who use BlackBerrys, iPhones or tablets distributed by their companies to engage in any form of inappropriate conduct away from work may have no reasonable expectation of privacy in the contents of those devices. Therefore, employers could, in some cases, conduct random searches of the devices and impose discipline based on what they find.
– Personal blog postings or Tweets made on employees' own time could possibly amount to cause for dismissal. In a recent case, a court sided with an employer, a retirement home, when it came across a personal blog created by one of its employees with postings expressing her disdain for the residents and management of the home. It did not matter that the employee created and maintained her blog at home or that she intended for it to be private; its connection to the workplace was obvious and any member of the public could view it.
– Pictures or postings on Facebook and YouTube are fair game for employers where indiscriminate content impacts, or potentially impacts, the company's reputation, trade secrets or its competitive advantage. It seldom matters where the content of the postings was created or even if the employee does not access these websites from work. Rather, what matters is whether the content affects an employer's legitimate business interests.
– When another employee's safety is threatened as a result of what occurs away from work, employers may even have an obligation to intervene under health and safety laws. The Ontario Court of Appeal recently dismissed the appeal of a municipality's former director of labour relations who harassed a co-worker away from work. The employee's position in human resources and the fact that he helped distribute harassment policies at work contributed to his failure at trial.
– In some cases, even an employee's poor choice of friends could justify dismissal. In a famous Canadian case, a bank teller was fired after it was discovered that she was living with a convicted bank robber. Even though she had done nothing wrong, the potential for harm was great enough that a court upheld her dismissal.
On the other hand, proving cause for dismissal is often one of the more intractable human resources tasks facing companies in Canada, as courts continue to hold them to very high standards of proof. That standard is even higher when the alleged misconduct occurs away from work. Therefore, what advice can employees glean from these examples?
– Conduct that occurs away from the workplace is not immune from discipline simply because it occurs away from work. What is relevant is how that conduct impacts or potentially impacts an employer's legitimate business or social interests.
– Where there is a policy in the workplace that permits employers to discipline or discharge employees for what occurs away from work, employers will be more likely to justify their decision to do so.
– Where off-duty conduct has no relationship to what happens at work, employers have no right to get involved. Unfortunately, when one workday ends and the next one begins is not always readily apparent.
Daniel A. Lublin is a workplace law expert and a partner at Whitten & Lublin.