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A Facebook post that goes viral. A barroom brawl that makes the front page. A confrontation at the local rink. Commentary on a divisive issue. All of these are examples of how someone's conduct outside of the workplace may be cause for scrutiny by their employer.
A recent high-profile incident involving an employee of Hydro One highlighted the extent to which off-duty conduct may lead to dismissal. In that case, the employee in question was caught defending vulgar comments to a news reporter who was conducting an on-air interview. What followed was a story that quickly went viral and that, in the utility's view, tarnished its reputation and gave it cause to terminate the employment relationship (a decision that has since been reversed).
This incident is not unique and demonstrates the extent to which off-duty conduct is being re-examined by Canadian courts and tribunals. Often, they are asked to rule on disciplinary measures imposed by employers that relate to conduct well outside of the workplace.
Off-duty conduct leading to discipline is not new. In fact, the notion has existed in Canadian law for several decades. Recently, it has been expanded, particularly due to employee commentary on social media platforms.
Decisions on this topic tend to fall into five different categories: romantic relationships that take place between co-workers outside of the workplace; company property used by employees while not on the job; off-duty conduct that is incompatible with the employee's position (for example, working for a competitor); behaviour at social events; and finally, conduct that has a bearing on the employer's reputation or image.
To deal with the sensitive issue of what employees are doing in their personal time, policies should be tailored to the specifics of the workplace. Employees should also be able to rely on clear guidelines that are explained in language that is simple and easy to understand.
Courts and tribunals are increasingly looking to the employer to understand the guidelines that have been set and whether they were reasonably communicated to the employee. With this in mind, employers should address off-duty conduct and reduce any liability that may result from it.
Employers should start off by clarifying what the "workplace" actually is. For example, are employees at work while visiting customers, attending tradeshows, socializing at work-related functions or travelling on business trips?
If an organization places value in its brand and if its image is crucial in the marketplace, it should be explained to employees why the company's branding efforts are a priority and that these efforts cost money.
Many organizations expect their employees to not work for others, including competitors, during the term of their employment. Organizations need to explain whether there are security or regulatory reasons why their employees must not be associated with a particular business or issue. Employers should communicate these rules clearly and include them in any contracts and policies, where applicable.
Cyberbullying is becoming a great concern as well. Companies should establish workplace harassment policies addressing online and after-hours harassment. Similarly, it is important to set clear expectations as to what types of online commentary are acceptable. There is nothing wrong with reminding employees that the company pays attention to what is posted online.
Employers need to be transparent in educating their employees regarding the company's investment in its online presence. Employees, on the other hand, should also be mindful of the fact that content they post may be shared and may become viral. They should also understand that disclosing confidential or proprietary information online is prohibited.
Finally, when addressing these issues, employers should clearly and openly state that disciplinary measures, including dismissal, may be imposed by the company depending on the circumstance.
It is never too late to set clear expectations to remind employees that what they do outside of work time or outside of the office may be relevant to their employer. By not taking this issue seriously, it may be harder for an employer to address unacceptable behaviour that occurs outside of the workplace.
Michael D. Grodinsky and Stuart S. Aronovitch are lawyers working in the labour and employment law group Borden Ladner Gervais LLP in Montreal. Mr. Grodinsky practises labour, employment, human rights and privacy law. Mr. Aronovitch practises labour, employment and human rights law, with emphasis on employment standards and related litigation