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Lines blurred between employees’ work and private life

No employee has ever been immune from the consequences of off-duty misbehaviour. But as the line between our personal and public lives is blurred, not surprisingly the public's appetite for permitting employers to punish after-work mischief has expanded.

Not many years ago, terminations for tagging, blogging, tweeting or even cheating were few and far between. The public, and the courts, had little sympathy for employers who meddled in the personal lives of their employees without a good reason. But today everyone has a smartphone with a camera – and they are ready to snap our photos or record almost any interaction. Others can now effortlessly document and upload snippets of our private lives, with or without our consent.

This is why every employee – especially senior ones – should consider that what they do on their own personal time, rightly or wrongly, can be exposed to their employers. But many employees are ignorant or simply do not care. The result, as recent wrongful dismissal filings suggest, is that the public's tolerance for an employer's ability to censure and sanction the off-duty behaviour of its employees has seriously widened.

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Take, for example, the recent story of a man described as the "TTC leprechaun" who garnered national attention after a bystander secretly videotaped him refusing to move his bag to allow a woman to sit down next to him on a crowded bus. He may have been the perfect angel at work, but the serious vitriol and negative publicity that followed his "outing" on social media probably cost him his job. And if he sued, the law does not force employers to tolerate miscreants who are exposed after working hours.

This is why the public oustings of Jian Ghomeshi, Donald Sterling and Ray Rice are not even relevant for the fact that their behaviour (or accused behaviour) occurred after work, in hotel elevators or the privacy of their bedrooms. The stories are significant only because of the names of the people involved. Otherwise, dismissals over accusations of sexual assault, domestic violence, and racism are common files at my law firm and others. The only difference is that those cases do not make the 6 p.m. news.

In this age of limited employee privacy, do employees still have any workplace protections from what they do at home? Fortunately, the answer is still yes but only because they have to be paid severance.

For an employee's after-hours conduct to have any lawful bearing on whether they can be disciplined or fired, they have to be part of that 1 per cent of the population occupying important positions of trust, such as senior executives or figure heads of their organization. In these exceptional cases, out of work conduct, such as allegations of spousal abuse or the type made against Mr. Ghomeshi, can be prejudicial to their employers' brand, and therefore, just cause for summary dismissal without any notice or severance.

Then there is another 1 per cent who do not represent their employer's brand but their off-duty misbehaviour is so heinous or shameful, such as a teacher who is caught possessing child pornography, that employers can also summarily dismiss them for just cause and generally that decision will be upheld.

What about the remaining 98 per cent of the working population who are completely irrelevant to their employer's brand and reputation? They too can still be fired for their behaviour after work, but they will have to be paid severance. As long as that amount is relatively fair, having regard to the ordinary factors such as age, position and tenure, then there is no recourse to the courts for wrongful dismissal.

So, while after-hours conduct may have been the reason for their termination, it is no different than being fired amid a restructuring or a lack of work and there is no basis to challenge their employers in court for wrongful dismissal.

There is also the issue of employment contracts and policy manuals, which are now more comprehensive than ever. Even junior employees are being asked to sign agreements with morality clauses that provide employers with the right to discipline or dismiss them if their personal lives interfere with their business interests. Courts have long respected an employer's right to enforce its contracts with employees and this situation would be no different. As long as there is consent, courts will uphold these agreements.

What conclusions can we draw? With the public's seeming interest in examining our off-duty conduct, what is relevant in the court of public opinion is beginning to closely resemble what is relevant in a court of law. And that's all that really matters when it comes to an employer's right to dismiss employees for what they do on their own time.

Daniel A. Lublin is a workplace law expert and a partner at Whitten & Lublin, Employment Lawyers. Dan@canadaemploymentlawyer.com

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