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Dec 18, 2019

Off-Duty Conduct and the Employment Relationship: Where Is the Line?

By Lorenzo Lisi and Michael F. Horvat

While the Remembrance Day telecast of Hockey Night in Canada wasn’t particularly lengthy, Don Cherry’s comments on support for the troops that night created a social media storm, which ultimately led to the end of his relationship with Sportsnet. More than anything else, this is a reminder that while an employee certainly has the right to his/her views, and to communicate those views, when they come into conflict with the values of the employer, or create a public backlash which potentially puts the image of the employer in a bad light, the results are often immediate and swift.

In the past, off-duty conduct was not generally an issue for employers. If it happened away from the workplace and outside of work hours, it was presumed to be the employee’s own business and, strictly speaking, of no concern to employer.

These days, cameras are everywhere in our daily public lives. The opinions and actions of both employers and employees can take on a greater significance under the social media spotlight fuelled by Twitter, Facebook and Instagram. Employers and their employees are now forced to consider and navigate the greying line between an individual’s private life and their connection to the workplace, particularly where employees have grown up in a world of social media and use it as their primary vehicle of communication.

As employees become more aware that their employers are noticing what happens away from the office or shop floor, employers must equally understand that there are still limits as to what behaviour they can regulate when the work day has ended.

The law regarding an employer’s response to off-duty employee conduct has evolved as the web of social connections between employer and employee ties them together outside of regular business hours. Bullying behaviour in the office has to be addressed, so why not address bullying that occurs on Facebook or Twitter. Human Resources departments now have no choice but to take notice and act, whether it is to address potential harm that may arise from bad publicity or to address concerns by co-workers due to comments or actions made by colleagues in "private" internet communications that have become public. Anecdotal evidence counters the notion that anything on the internet or that is electronically distributed is or can remain private.

Employees must understand that companies will act to address off-duty conduct when that conduct could detrimentally affect their image, brand or business, or otherwise impact the well-being of coworkers. In some cases, employers will have no choice but to investigate such behaviour and discipline or terminate the employee if misconduct is found to have occurred. For example, under recent changes to the Occupational Health and Safety Act, Ontario companies are now mandated to have policies in place regarding the reporting and investigation of harassment and sexual harassment complaints. The application of such policies extends beyond the workplace. Off-duty comments made on Facebook toward a co-worker can create a hostile work environment as easily as comments made in the lunchroom.

What then can employers do in responding to the collision between private conduct and rights, and those of the employer? The most important, and in many ways the simplest, step is to make sure that there are policies in place which provide direction to employees about their use of social media (such as Facebook, Twitter or Instagram). These policies should caution employees about their use of technology both at the workplace (when using company email and computers) and away from the workplace. They should also refer to the company’s harassment policies and code of conduct rules, and advise employees that off-duty conduct can be subject to investigation and discipline (including discharge). But just having a policy isn’t enough. Employees must be trained and an employer should consistently review and enforce their application.

However, not all off-duty conduct supports discipline or censure. Employers have to be ready to distinguish between actions that create a public relations issue (i.e. where the sentiment is that the employee has embarrassed the company) and require only a public relations response, with those actions that have created a human resources issue (our employee has breached policy and caused damage to the company’s goodwill or to another employee), which could require investigation and discipline.

Not every case where harm is caused to the company’s brand or reputation will require a human resources response, and the harm or potential harm caused will only be one factor among many when determining if investigation and discipline will be appropriate in the circumstances. Other factors will include the degree of responsibility exercised or public position held by the employee, and whether the misconduct will hinder that employee’s ability to perform their job and/or their ability to work with co-workers and their co-workers’ corresponding willingness to continue to work with them.

Termination of employment for conduct that happens away from the workplace will still depend upon the severity of the employee’s misconduct, the severity of the harm the employee has caused to the company or co-worker, the employee’s work history and employment record, and whether the employee has taken steps to accept the consequences of his/her action and has acted to repair the situation. An employer should consider all of these factors before determining whether discipline or termination would be the appropriate action. All of these factors must be balanced, and termination with cause will still be viewed by an arbitrator or court as having been the last resort to address the issue.

There are times, of course, where the off-duty conduct, even though it might not support a termination for cause at law, will still be the path an employer chooses to follow. For example, given Don Cherry’s history of off-colour remarks or inappropriate comments, if litigated, he may have been able to argue that Sportsnet condoned his comments in the past. As such, he shouldn’t be held to the highest standard of conduct and therefore, no just and sufficient cause could be proven. In the face of this risk, many employers know and understand the termination might be supported by an offer of common law severance. It allows the employer to take a stand in public that such conduct won’t be tolerated, while avoiding risk of a public trial or adjudication.

The fact remains that employees generally view social media as a necessary part of their life and a way to express their views and communicate with their peers, coworkers and friends. The response for employers is part due diligence and part common sense. Make sure employees know and understand the boundaries and are aware of and trained on the company’s policy for off-duty conduct and use of social media. At the same time, employers should avoid an over-reaction. Investigate what was said, posted or done. Address the impact of the comments with the employee as well as those who might be impacted. Assess how the conduct or comment impacts the brand or reputation of the company. And determine if that employee, by conducting him or herself in such a manner, has fundamentally breached the employment relationship, or whether it is simply something that can be addressed with discipline and/or training.

It’s a new world for employers, but the old rules of diligence and a measured approach remain an employer’s best tool in what can often be a volatile situation.

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