October 18, 2012

In an age in which employers can tap into employees’ social networks to easily discover employees’ off-duty activities and conversations, the apparent conflict between the employee’s right to a private life and the employer’s business interests has come to a head. In this session experienced counsel will discuss the legal principles applicable to discipline for off-duty conduct online as well as discipline for other types of off-duty conduct that have traditionally concerned employers.

    • General considerations: When are employers generally allowed to discipline employees for off-duty conduct? Is the answer to this question different for unionized workplaces than it is for non-unionized workplaces? Do adjudicators require objective proof that an employee’s off-duty conduct has harmed an employer’s business interests? Should they? Will employers in certain sectors, e.g. education, government, find it easier to legally justify discipline for off-duty conduct than employers in other sectors, e.g. manufacturing?
    • Criminal charges and convictions: Can employers discipline employees charged with a criminal offence on the basis that the criminal charges will adversely affect the employer’s reputation? Can employers suspend employees pending final disposition of the charges? When can employers discharge an employee convicted of a criminal offence for conduct that occurred off-duty?
    • Drug and alcohol use: Is an employer entitled to inquire into an employee’s off-duty drug or alcohol use? Can an employer discipline an employee for off-duty drug or alcohol use even if the employer cannot prove that the employee’s job performance has been affected? Does the answer to this question depend on whether the workplace or the job is “safety-sensitive?”
    • Conflicts of interest: When can an employer discipline or dismiss an employee who has a second job on the basis that the second job creates a conflict of interest? When will political activity constitute a conflict of interest for public sector employees? Can the political activity of private sector employees ever constitute a conflict of interest justifying discipline or discharge? Can employers legally discharge or discipline an employee on the basis that the employee’s personal relationships create a conflict of interest in the workplace?
    • Expression offline: When have employers been allowed to discipline employees for comments or statements made off-duty and outside the workplace? Are employers allowed to discipline employees for private off-duty statements that come to their attention or are employers limited to disciplining employees for public statements? Can employees be disciplined for comments they make to customers/clients while they are off-duty and not in the workplace? When have employers been permitted to discipline employees for off-duty criticism of the employer?
    • Expression online: When can employers discipline employees for Facebook comments that are made off-duty? Does it matter if the Facebook page on which the comments are made is restricted by privacy settings? How do adjudicators determine whether such comments are public or private? Can an employer discipline an employee for engaging in harassment via emails or text messages while off-duty on the basis that such behaviour creates a poisoned workplace? Can employers discipline employees who engage in criticism of the employer through a union’s Facebook page or blog? What if discussions critical of management take place via off-duty emails or invitation-only twitter accounts?