InFocus: Off Duty Conduct

HR ferrets out reputational risk to their organizations

HR ferrets out reputational risk to their organizations

By John Tenpenny

The pervasiveness of social media is making it easier for employers to prove reputational damage stemming from a worker’s off-duty misconduct.

Concerns about how worker off-duty conduct, especially online, reflects on the reputation of the employer has HR actively looking to mitigate the risk. Making sure employees understand that their conduct has much larger ramifications than they might think is a large part of containing any threat.

Still, the basics apply: If an employee’s off-duty conduct is injurious to the general reputation of the company or renders the employee unable to perform their duties satisfactorily, then termination may be the result.

Making that case has traditionally been hard for employers but the omnipresence of social media and Internet news has made it much easier.

In one recent high-profile case, an Ontario court upheld the dismissal of a long-service employee charged with possession of child pornography – that despite his clean employment record. The very public nature of the charges and the resulting reputational damage to the employer were key factors moving the court to uphold the dismissal based on employee off-duty misconduct.

But actively monitoring an employee’s footprint on the web is a more nuanced question, facing HR.

In regards to how much policing an employer can legally do in terms of the non-work related social media accounts of its workers, Lorenzo Lisi, Practice Group Leader of the Labour & Employment team at Aird & Berlis LLP, says it depends.

“Certainly employees who allow their comments to become available to the general public also risk their employer finding out what they’ve said or posted,” he says. “So employers can undertake a review of social media when it, like the general public, has access.”

When it comes to work-related technology, employers should have clear guidelines, procedures and policies in place and “where employees use social media on company servers or equipment, employers may very well take the position that they can monitor/review that information,” says Lisi.

Still, employers should create policies with respect to employee use of social media, both personally and professionally, and ensure that workers are trained in these policies and understand the consequences, especially with respect to their use of Facebook, Twitter, Instagram, LinkedIn and other social media platforms.

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Aird & Berlis LLP is a leading Canadian law firm based in Toronto, serving clients across Canada and globally. The firm’s practice encompasses all principal areas of business law.

The Aird & Berlis LLP Labour & Employment Group provides practical and cost-effective advice to employers on a broad spectrum of workplace law matters. Our breadth of expertise ranges from labour, employment and human rights to occupational health and safety. We provide employment counsel in unionized and non‐unionized environments, to employers in both the private and public sectors. Our specialized team works with employers in various industries to navigate regulations, manage risks and ensure compliance.

We are well-versed in advising on collective bargaining, union-organizing defence strategies, strikes and lock outs, grievances and terminations, union certification and investigations, employment agreements, wrongful dismissal, privacy and access to information, pension and benefits, pay equity and compensation, severance, recruitment, employment standards and insurance, workplace audits, unfair competition, fiduciary duties, enforceability of restrictive covenants, human rights complaints as well as the development, interpretation and application of forward thinking workplace policies and procedures. We also advise employers on issues arising in commercial transactions, including acquisitions, divestitures and restructurings.

Correspondingly, our lawyers regularly represent employers before various courts and tribunals, including the Ontario Labour Relations Board, the Canada Industrial Relations Board, the Ontario Workplace Safety and Insurance Board, the Ontario Workplace Safety and Insurance Appeals Tribunal, the Ontario Human Rights Commission, the Pay Equity Hearing Tribunal, the Ontario Court of Justice, and the Superior Court of Justice.