Discipline for Off-Duty Conduct: Update on the law

Employees are generally entitled to a sphere of privacy, where what they do off duty is outside of the concern and control of the employer. However, in some cases, an employee’s off-duty conduct may adversely affect an employer’s interests. When will an employee’s off-duty conduct constitute just cause for discipline? What evidence will arbitrators require in order to assess the potential damage to an employer’s reputation as a result of an employee’s off-duty conduct? On June 17, Lancaster’s panel of experts will provide you with the tools necessary to assess your rights and duties in relation to employees’ off-duty conduct. Topics to be discussed include:

• Criminal Charges: If an employee has been charged with a serious criminal offence, can employers suspend the employee without pay, pending the trial? If acquitted, is the employee entitled to back pay for the time during which he or she was suspended? When must the employer await the outcome of the trial before resorting to dismissal? If convicted, can the employee challenge a dismissal at arbitration? Can an employee be disciplined for a failure to report criminal charges? Does an employee have the right to remain silent when being asked to explain potential criminal off-duty conduct? Do employees have a right to leave for incarceration (for example, pending bail, or pre-trial custody)?
• Criminal Conviction: What connection must there be between the criminal conviction and the grievor’s job duties for dismissal to be found “just”? What effect, if any, will the appeal of a conviction have on the employer’s ability to discipline the employee for a criminal conviction? Can an employer refuse to hire an individual because they have been previously convicted? What if they have received a pardon?
• Vicarious Liability: When will employers be held liable to third parties for off-duty misconduct by their employees?
• Drug and Alcohol Use: Can an employee be disciplined for off-duty alcohol or drug abuse? What if the drug/alcohol use does not affect the employee’s performance at work?
• Conflict of Interest: What type of off-duty conduct will constitute a conflict of interest with an employee’s job? Political activity? Outside employment? When will off-duty relationships constitute a conflict of interest or misconduct?
• Surveillance: When will an employer’s videotape surveillance of an employee’s off-duty conduct be held admissible in grievance arbitration?
• Off-Duty Speech or Conduct: Can an employee be disciplined for distasteful comments made to clients or customers while off duty? When will discriminatory speech or conduct of an employee off duty be held to create a poisoned work environment? What liability might employers face for failing to discipline an employee for off-duty discriminatory speech? Can an employee argue that discipline unjustifiably infringes his or her freedom of speech?
• Online Activity: Can employees be disciplined for off-duty online activity and what kind of activity warrants discipline? Posting insulting comments about fellow employees? Views expressed on public blogs that reflect adversely on the employer or other employees?