In fact, failing to take remedial action could lead to a claim for negligent hiring or retention against the employer down the road. (In the union context, generally an employer cannot discipline for off-duty conduct unless the activity threatens the safety and security of the workplace, the employee's performance or the employer's business interests.)
The answer is slightly more complicated when an employer attempts to regulate lawful off-duty conduct, such as social media postings or tobacco use. There are several competing interests at play. On one hand is the employee's right to be free from the employer's control while he or she is away from work and for conduct that may have no impact on the employee's performance. On the other hand is the employer's desire to enforce its policies to minimize liability, protect its reputation and maintain employee productivity.
In an at-will employment relationship, both the employer and the employee can end the employment relationship at any time without notice or reason. In other words, the employer has the right to terminate an employee at any time, for any reason, for no reason at all or for a bad reason, as long as it is not an unlawful reason. In order to determine what reasons are "unlawful," one must look to federal, state and local laws.
Federal law
Off-duty social media use also may be protected under federal law. As many employers have learned the hard way, the National Labor Relations Act (NLRA) applies to the private sector and may restrict an employer's ability to terminate an employee for posting disparaging comments on social media. An employer also may violate the NLRA by maintaining an overbroad social media policy if it could be construed by employees to prevent them from discussing their wages or other conditions of employment.
State and local laws
Next, employers must consider state and local laws, as well. Most states have laws that are similar to or mimic federal law. Many states, however, have laws that are much more expansive and protective of employees' rights. Many states have laws protecting smoking, elections and voting, certain types of court-related leaves of absence, victims of crimes and/or abuse, medical marijuana or the possession of firearms, among others.
In addition to laws that protect specific types of off-duty conduct, some states have enacted laws that protect broad categories of off-duty conduct, or require that an employer demonstrate some nexus between the employee's engagement in an activity and the employer's business before allowing the employer to take adverse action against the employee for engaging in the conduct.
In Colorado, for example, it is illegal for an employer to terminate an employee because that employee engaged in any lawful activity off the employer's premises during non-working hours unless the restriction 1) relates to a bona fide occupational requirement or is reasonably and rationally related to the employee's employment activities and responsibilities; or 2) is necessary to avoid, or avoid the appearance of, a conflict of interest with any of the employee's responsibilities to the employer.
In Montana, an employer is prohibited from refusing to hire a job applicant or disciplining or discharging an employee for using "lawful consumable products" (such as tobacco or alcohol) if the products are used off the employer's premises outside of work hours, with certain exceptions for a bona fide occupational requirement or a conflict of interest, similar to Colorado's law.
In addition to the examples set forth above, below are additional instances of off-duty conduct that may or may not be grounds for discipline or termination, depending on the state and the circumstances.
In order for an employer to be warranted in their discipline of off-duty conduct there has to be a real and material connection between the employee's off-duty conduct and the employment.
In Ms. Hatzantonis' case, it was found that her conduct had a sufficient nexus to her employment and thereby worthy of sanction because she identified herself as an employee, was on TDSB property, the target of the abuse was a TDSB student and she used her position as a TDSB employee to threaten the student.
In MillhavenFibres Ltd. v O.C.A.W., Local 9-670, 1967CarswellOnt 789 (Ont. Arb.) it was determined that an employer must establish at least one of the following before disciplining or terminating an employee for off-duty conduct:
1. the conduct of the employee harms the company's reputation or product;
2. the employee's behaviour renders the employee unable to perform his duties satisfactorily;
3. the employee's behaviour leads to refusal, reluctance or inability of other employees to work with him or her;
4. the employee has been guilty of a serious breach of the Criminal Code, and thus rendering the employee's conduct injurious to the general reputation of the company and its employees;
5. the employee's conduct places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.
Ms. Hatzantonis's conduct was found to have harmed the reputation of TDSB. Where this has been established, courts or tribunals, will examine the nature and circumstances of the misconduct to determine the appropriate disciplinary measure.
In Ms. Hatzantonis' case, while there were some mitigating factors, termination was found to be the appropriate discipline in part because she was dishonest in her description of the events, attempted to minimize the seriousness of her actions and attempted to conceal her conduct by soliciting and counselling students to provide false
In this digital age, it is more likely than ever that an employee will be caught engaging in off-duty misconduct. However, not every incident of off-duty misconduct constitutes just cause for termination. A balance must be reached between the private lives of employees and the reputation of employers.
A high burden must be met in order to discipline or terminate an employee for off-duty conduct. However, many of the best practices for misconduct in the workplace should be applied to off-duty misconduct. Employers should be developing an employment policy that includes specific off-duty and social media guidelines, disseminate the policy to all employees and ensure they understand that employment misconduct can apply to situations where they are not at work including online, and consider consulting with legal counsel in developing and implementing a policy.
In the event that an employee's off-duty misconduct comes to the attention of an employer it is best to engage the procedures swiftly and confidentially and a workplace investigation may be necessary. Having clear guidelines and expectations of employees for off-duty conduct is the best way to prevent such incidents from impacting your workplace.