Williams HR Law LLP

The Ashley Madison Leak – Part Two of Two: Off-duty Conduct

September 16, 2015

[vc_row][vc_column width=”1/3″][vc_single_image image=”2058″ img_size=”full”][/vc_column][vc_column width=”2/3″][vc_column_text]For employers across Canada, the recent data leak of client information taken from the extramarital dating site Ashley Madison has initiated widespread discussions about workplace confidentiality and behaviour. Last week, we reviewed the law surrounding the repercussions of a breach of confidential information by an employee. In part two of our two-part series, we examine an employer’s right to discipline and/or dismiss an employee as a result of that employee’s off-duty online activities.

It’s no secret that any employer who attempts to dismiss an employee for detrimental conduct outside the workplace must meet a high threshold to demonstrate just cause for termination. One recent, highly-publicized example in May saw Hydro One terminate the employment of an employee for misogynistic statements he made on live television to a reporter outside a Toronto FC soccer match.

That incident raised a key question: to what extent can an organization police the out-of-work activities of its staff? If an employee is revealed to be a client of Ashley Madison as a result of the aforementioned data leak, for example, could the employee’s apparent intent to engage in adulterous activity be upheld by a court as just cause for dismissal? The answer: likely not. Unless the employee was engaged in an online relationship that had serious ramifications in the workplace or violated his/her organization’s employee code of conduct in some way, it would be difficult to make the case that the online activity was a breach of policy or compromised the integrity of the employer’s brand in a manner sufficiently significant to establish just cause. A possible exception would be an employer that emphasizes moral and family values, such as a church-run organization. If this were the case, the organization would have a stronger case for just cause dismissal. Another possible exception: if the employee created the Ashley Madison account using a company email address, visited the website using a company-owned electronic device or interacted on the platform during work hours. Still, those actions would likely need to violate the organization’s workplace conduct policies to potentially constitute just cause, and, even then, the actions would need to be particularly severe to constitute just cause for termination.

From an employment law perspective, an employer’s right to discipline or dismiss its employees for off-duty online conduct remains somewhat unclear. The reason is because the use of the internet for private or commercial acts, ranging from basic web surfing to social media communication, is still a relatively new phenomenon. The Web only came into widespread, mainstream usage in the mid-to late 1990s, so there is relatively little Canadian case law addressing the issue of termination of employment for internet-related activities. In fact, the first Canadian court decision that addressed the issue of termination of employment for cause due to comments made on social media was made by the British Columbia Supreme Court in the 2014 case Kim v International Triathlon Union (“Kim”). In Kim, it was discovered that the employee, who as the company’s communications director was responsible for posting work-related material online, had posted numerous negative comments about her employer on her own blog and on various other personal social media platforms. As a result, the employer terminated her employment for cause. The employee then claimed she was wrongfully dismissed, arguing that: the comments were intended as humorous; the employer had no social media policy; the organization had a casual working atmosphere; and the employer did not issue any warnings to her for this behaviour before deciding to terminate for cause. The Court sided with the employee, stating that the employer “did not give the plaintiff an ‘express and clear’ warning about her performance relating to the social media posts and a reasonable opportunity to improve her performance after warning her.”

This case does not mean, however, that employers are powerless when it comes to their employees’ online activities. Having an effective, up-to-date policy that addresses employee off-duty conduct will increase the likelihood that a court will uphold a for cause termination. Within this off-duty conduct policy, employers should:

  • Include language specific to employee use of technology (covering social media use, internet use, personal device use and confidentiality relating to these technologies); and
  • Ensure that all employees are trained on, and abide by, these policies.

Organizations should also ensure that, while in the process of disciplining an employee for improper social media or internet use, they give the employee an opportunity to improve his or her performance. In the event of a breach of these policies, discipline should be meted out in a consistent manner. Language in these policies must explicitly address a potential situation in which an employee negatively affects the reputation of the organization due to something the employee posted online, or for online behaviour that negatively impacts their employer’s brand or business dealings.

Lastly, employers should always obtain legal advice to ensure the effectiveness and enforceability of these policies—then make regular revisions to keep them up-to-date. Both the law and the technology in this realm are evolving at a rapid pace, making that latter task increasingly important in the years ahead.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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