Conduct Gone Viral: Private behaviour, public reaction, and workplace consequences

The proliferation of social media use continues to blur the boundaries between an employee’s personal and professional life, raising a host of legal issues such as an employer’s ability and employee’s liability to discipline or discharge employees for off-duty behaviour. This session will explore the legal principles applicable to the workplace consequences of objectionable employee conduct outside the workplace that garners public attention.

• Reviewing foundational principles: When can employees be disciplined or discharged for off-duty misconduct? Must the misconduct be connected to the employee’s job to warrant discipline? Are different considerations applicable in unionized versus non-unionized workplaces? What type of evidence is required to establish that off-duty conduct has harmed an employer’s business interests, including its reputation? Is objective proof of harm required? Are certain types of off-duty conduct, such as fraud or sexual harassment, more likely to be found to have irreparably damaged the employment relationship, justifying discharge? Is dismissal more likely to be upheld for employees working in trust-sensitive positions, such as teachers and health care workers?
• Evaluating online posts and videos: How will decision-makers assess whether public statements made off-duty and outside the workplace, including tweets, Facebook posts, or YouTube videos, harm an employer’s reputation or damage the employment relationship? Does it matter if the comments were intended to be private? Must the posts or videos be offensive to an employer’s clientele or discriminatory in order to justify termination? In what circumstances can an employee be disciplined for publicly criticizing his or her employer? Do employees have any freedom to express criticism of their employers online during their off-duty hours? In what circumstances, if any, can the political activity of a public sector employee justify discharge or discipline? How far do the constitutional principles of freedom of expression and freedom of association extend in protecting online communications by union members?
• Assessing harassment and violence: What unique considerations apply where an employee’s conduct gone viral involves violence or harassment? Will the need to deter and denounce such conduct justify dismissal? Can inappropriate jokes or pranks which occur off-duty be considered workplace bullying/harassment? Where such behaviour has attracted public scrutiny, will the employer’s desire to distance itself from the misconduct warrant discharge?
• Considering criminal charges and convictions: In what circumstances can employees charged with a criminal offence be suspended or discharged? If suspension pending trial is found to be justified, but the employee is ultimately acquitted of criminal charges, is he or she entitled to back pay? In what circumstances can an employee be discharged for a criminal conviction related to off-duty misconduct? Does it matter if the conviction preceded hiring, but only later came to light?