With basketball, baseball and hockey all in full swing and sports fans caught up in the excitement, now is a good time to revisit the question of whether an employer can terminate an employee who engages in inappropriate or offensive conduct outside of work hours.
Last fall, the Toronto Blue Jays hosted the Baltimore Orioles for the American League “wild card” game. The Jays beat the Orioles in a thrilling 5-2 finish, advancing to the playoffs, but the game was marred by the poor conduct of Toronto fan Ken Pagan, who threw a can of beer at a visiting player as he ran to catch a fly ball. The incident went viral, attracting negative attention not just to Pagan himself, but to the city of Toronto.
Pagan’s conduct also embarrassed his employer, Sportsmedia.
Now that baseball season has begun again and the Toronto Maple Leafs are in the playoffs for the first time in years, employers and employees alike might wonder: what recourse does an employer have against an employee who does something off-duty, at a sporting event or otherwise, that embarrasses the organization?
The short answer is that, under the right circumstances, an employee can indeed be terminated for something he does on his own time, away from work, even if he was not representing his employer in any way. The law has always provided for discipline or dismissal arising from off-duty conduct in appropriate circumstances. Now, with every ill-advised action merely a cell phone video away from going viral, the issue has gained significance for both employers and employees.
Most terminated employees are dismissed without cause, entitling them to notice of dismissal or pay in lieu. An employee dismissed with cause, however, is entitled to nothing: no notice, no severance, no pay in lieu.
This harsh result, often called the “capital punishment” of employment law, requires that a high threshold be met. In assessing whether just cause is warranted, the alleged misconduct cannot be considered in isolation; all relevant circumstances must be taken into account. Additional factors to be considered include the employee’s length of employment, the nature of his or her position, any disciplinary record, and the response to the allegations of misconduct. Anything that relates to the viability of continuing the employment relationship must be considered.
Ultimately, it is about proportionality. In many instances, courts will conclude that while the alleged misconduct warranted discipline, termination for cause was too harsh. In others, however, the dismissal will withstand judicial scrutiny. Every case must be considered on its unique circumstances.
Lessons for Employers
As the airlines are learning, it only takes a few seconds for inappropriate conduct to go viral. First, you should hope it’s not your employee. Second, if it is, you should check to make sure that you have a Policy that states your expectations of conduct for off duty workers. Third, you should check your Employment Agreement to ensure at the least it refers to criminal conduct being grounds for termination for cause. As precision is required in the wording, it is always best to seek advice from Employment Law counsel to ensure that you are fully protected.
Lesson for Employees
You are being watched, wherever you are! Your right to privacy – forget it! Remember one act of misconduct in a public place could go viral in today’s age of technology. Be careful, don’t risk throwing your job away and being terminated for cause as a result of one error of judgement! If you get caught, your conduct and the wording of the Company Policy and Employment Agreement will determine whether there are grounds to terminate your employment for cause based on off duty conduct.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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