Case raises questions about employer control over off-duty conduct
The recent case of the termination of a teaching assistant in British Columbia for posting seductive photos and videos on different platforms - including her ‘OnlyFans account’, a website known for custom pornography - highlights the continuing tension between employee responsibilities and obligations to their employer, even when engaging in off duty conduct.
The employee was an education assistant with the Coquitlam School District. On June 16, 2023, her employment was terminated after about a year of posting photos online, which included her posing in a school girl outfit.
The school board presented her with over 70 printouts of her social media pages, quotes from news articles and research into OnlyFans. It also sent her a ‘cease and desist’ letter warning her to remove social media accounts or risk termination.
Ultimately, she did not and was terminated via a termination letter from the district assistant superintendent of the school board which stated her “misconduct in this matter is egregious,” according to media reports. In fact, the termination letter stated six reasons for the employee’s termination – including allegedly posting pictures on public accounts that "involves the sexualization of the school environment."
"In the employer's view, each of the above six points independently constitutes a fundamental breach of your obligations as an employee and cause for termination of your employment," the letter reads, according to CBC.
The case raises questions around what control, if any, employers should be entitled to over the private lives of their employees. Speaking with Lorenzo Lisi, partner at employment firm Aird & Berlis, he tells HRD that while this is an off-duty conduct case, social media has continued to expand the definition of the ‘workplace’.
The Coquitlam school board also referenced the teaching assistant’s violation of policies and procedures which were readily available to her, with which she know she was required to comply.
“There are really two elements of off-duty conduct which can impact an employer-employee relationship,” Lisi tells HRD. “One is where the off-duty conduct can detrimentally affect the employer’s image or brand; the other is where it renders the employee unable to perform their duty satisfactorily, such as where it impacts other employees.”
And terminations for off-duty conduct are becoming far more common, he says.
Lisi recalls notable cases which drew a lot of intention, such as the Don Cherry incident in Canada where the popular presenter was terminated for making controversial comments about Canadians; and an employee who was identified and terminated after throwing a beer onto the field during a Toronto Blue Jays game.
“When an employee’s actions can negatively affect the employer’s reputation and/or operations, there may be a basis for a with cause termination” says Lisi, such as an employee making a controversial or offensive remark which might tarnish the employer’s brand.
“Employers may well invoke the concept that employees who make themselves visible in the community, particularly on social media, may in fact have restrictions on what they can do and say as it relates to their employment.”
And, in the B.C. case, context was very important.
“In these circumstances, it was clear that despite warnings about her conduct, she continued posting,” adds Lisi. “And there was a clear ‘nexus’ between the conduct and her job, including the sexualization of the workplace. On this basis, the employer here may be able to establish just cause for termination.
“Courts and arbitrators have to assess not only the conduct in question, but the employee’s occupation, the nature of the employer’s work, and how the information made its way to the public. However, there has to be exposure to the public, and a reason why the conduct either undermines the employer’s brand and/or reputation - or a tangible issue which is created by the conduct within the workplace. Such as, for example, highly offensive comments made which impact other employees.”
There's a certain point where that off-duty conduct will go over the line of what is acceptable in order to fundamentally breach the employment relationship, he says.
“Employers have for many years made a robust social media and off-duty conduct policy part of their general policies and procedures, which address employee conduct when they are not working, and provide parameters around what an employee can and cannot post,” says Lisi.
As with many workplace issues, having clear guidelines for employees to review and understand is critical, he says, “not only to protect the brand and reputation of the employer, but also to comply with the obligation to ensure a safe workplace free from harassment and discrimination.”
And, given the overwhelming impact of social media, there are likely many more of these cases to come.
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