Scrolling through her social media feed, a manager sees a picture of one of her employees at a COVID-19 anti-mask or anti-vaccine rally.
Or perhaps an employee vents about his job after hours on his Facebook page, but a co-worker sends a screenshot of the post to his employer.
During this pandemic, with so many of us living online 24/7 and so much going on in the world to have opinions about, what are the rules around employees' behaviour when they aren't at work?
It turns out it all depends.
The Chief caught up with Andrea Raso, an employment and human rights lawyer at Clark Wilson LLP, to get the scoop on what employees and employers need to know.
What follows is an edited version of that conversation.
Q: Many of us watched after the U.S. Capitol insurrection last month as rioters were identified, and many very publicly fired from their jobs for being involved. That seems a clear situation where your outside work behaviour impacts your employment. But what does the law in B.C. say more generally about employees' behaviour outside of work?
A: It is not anything new in the law. The law is quite developed in that regard. It is highlighted right now because people are a lot more visible than they used to be: everything is caught on video now, and people share so much on social media. The rules around outside work activities focus on if the behaviour causes damage to your employer.
Damage can be monetary, or it can be damage to reputation.
Take the insurrection: there was a CEO of a company who was found to be involved in that. That directly goes to the reputation of the company. He was in the highest-ranking position within the company. He engaged in conduct that could potentially be criminal, so there was no doubt that if he didn't walk away himself, he was going to be terminated.
It is slightly different if you are a lower-level employee or with an employer whose reputation is not critical.
If you are a factory worker and are caught in something and your name is posted, no one will associate you with that company unless who you work for is also posted.
It does mostly depend on the situation.
There was a story years ago when a fellow was fired after yelling a derogatory and sexist slogan at a reporter while she was on the air. People found out where he worked and he was let go. Many people don't know that some months later, he filed a grievance and it was found that his termination was wrongful. It depends on if the person is the face of the company and can damage its reputation.
Q: What about in the current climate, if an average employee is openly anti-vaccine or photographed at an anti-mask rally?
A: It might be hard for an employer to defend firing the person in that situation because people have the right to express their opinions. It is just what impact that has on the employer.
Q: So, the burden of proof is on the employer to show that it hurt the company's reputation, correct?
A: Absolutely. Whenever the employer terminates, it bears the burden of proof. The employer has to show that the conduct went to the heart of the employment relationship and impaired the trust in the relationship to the point the employment contract came to an end. That is the test. Every situation is going to be different. It depends on the employee's position in the company and the type of organization.
If you are an anti-mask protestor and work for some organization lobbying against wearing masks, that is fine.
Q: How often do these situations end up in court?
A: The vast majority of employment law cases don't get to court. About 90% settle before they get there. In the unionized environment, these types of things tend to go to arbitration.
When these things do get to court, judges all rely on the same sort of test: how does this impact the organization. I haven't seen anything in B.C. yet in terms of anti-mask wearing or anti-vaccine protests. But, it is probably still early days.
Q: What if you are racist online?
A: When the Black Lives Matter movement started, we saw some cases where people had posted things.
If you post something racist, it will be viewed more harshly by an employer because an employer has an obligation under human rights legislation to prevent harassment and discrimination in the workplace and to protect its employees from that. If they see that an employee has put something racist online, that directly affects employment because, how can the employer be sure it has created a safe work environment when one of its employees has been blatantly racist?
That is a bit of an easy one to come down on compared to someone posting something anti-mask.
Q: If it is part of the work culture to dress casually (no uniform, etc.), can an employer stop employees from wearing Black Lives Matter shirts, for example?
A: Generally, employees can wear what they want, so long as there is no policy against that. This is particular to each workplace. There isn't anything that makes it outright illegal, but your employer does have quite a bit of leeway to have a policy around wearing political things. They can't ban just certain political beliefs because political beliefs are protected under human rights legislation, but they can put in a more blanket policy that says, "You can't wear anything with logos or statements."
If no policy says that, an employee is free to wear what they want, depending on if it damages the employer's reputation. If you are a front-facing employee and are wearing something that can be seen generally to be offensive (a shirt that says ‘QAnon is the best,’ for example), an employer can't terminate you for that but can rightfully tell you that you can't wear that.
What employers often do, is they have such a situation come up, and then they realize they don't have a policy, and then they make a blanket policy.
Q: Thus, you would advise employers to work out all of these things before something comes up?
A: Absolutely. Employers put themselves in a strong position if they have policies on all sorts of workplace conduct. Firstly, it helps the workplace, because everyone understands what is expected of them.
And courts in our system want to see the employer's policy, and they want to see it drafted carefully. And they want to see employers abide by them, themselves. A well-drafted policy will go along way in defending against any claims that come up.
Q: What is your advice, particularly for perhaps younger employees who live more of their lives out online?
A: Be very careful what you post. While you might think it is private, it is very easy for anything to become public. I had a case once where the employee posted about how terrible their workplace was. That is not smart. That will get you terminated. Be very mindful of what you do for a living and who your employer is. Will your conduct bring that employer into disrepute?
That is the best way to look at it.
Q: It can get sticky then, right? Because where is the line of having your personality, point of view, and being an employee?
A: Right. And free speech. You absolutely have a right to free speech, but there can be consequences.
All that said, there are privacy laws. An employer who goes on to Google and finds out about a prospective employee when looking at applications — that technically is offside the privacy legislation in British Columbia. I know many employers do it, but it is a technical breach of privacy because what are you doing it for? Are you doing it to decide if this employee is going to be a good employee? Or are you just trying to find some dirt on them or see what they do in their free time? Even stuff you have on a public website is not meant for employers to decide if they will hire you or fire you based on that.
Q: Related to that, if a co-worker takes a screenshot of something untoward that you say or an image of you and then sends it to an employer, where does the employee stand?
A: Your average co-worker has no obligation to you, and this is not bound by privacy legislation, so they can do whatever they want without consequence. They can take it, and they can post it. Whether or not you will get a good reputation for doing that is another thing, but there is not anything illegal about that. Suppose the employer sees that through no fault of his own, the employer can use that information, so long as they don't search for it. I have seen many situations where people have posted things or tweeted something, which has gotten back to the employer and caused a lot of damage.
What I always say to my kids is, "If you don't want your mother reading it on the front page of the newspaper, don't write it, and don't take a video of it.”
