It is a common misconception that employees cannot be disciplined or terminated for what they do outside of their workplace. Numerous court decisions and arbitrations throughout Canada have established that this is not the case. Conduct outside the workplace that negatively impacts your employer can warrant discipline, and even dismissal. Decision-makers often look to the following four factors to determine whether employee discipline is warranted in this context:

• Will the employee’s conduct harms the employer’s reputation or product?
• Will the employee’s behaviour render the employee unable to perform their duties satisfactorily?
• Will the employee’s behaviour leads to refusal or reluctance of other employees to work with them?
• Will the employer’s conduct make it difficult for the employer to efficiently manage its work and direct its workforce?

Historically, disciplining employees for conduct outside a workplace usually involved some sort of real life criminal element; however, it has now extended into the realm of social media. Recently, employees throughout Canada, have been disciplined and even terminated for what they have tweeted and for their comments and posts on Facebook. Commonly this occurs when employees have made demeaning, racist, sexist, and bullying remarks on social media about other employees, their employers, and their clients. From an employee’s perspective, one easy step to try to avoid this situation is to ensure that your privacy settings provide the most privacy possible. Even doing so, however, is no guarantee that your privacy or secrecy will be maintained. Increased privacy settings should not be misconstrued as entitlement to post on social media with abandon, as a decision-maker may still find that you acted in the public sphere. From an employer’s perspective, now would be a perfect time to prepare a policy on the use of social media by an employee. Your social media policy should clearly outline your expectations of your employees while using social media on company time. The policy should be general enough to make sure it incorporates social media applications that may not yet exist. It should also clearly explain what disciplinary action will be taken if an employee breaches this policy. About the author: Andrew is an associate in the Saskatoon office and practices in a broad range of areas. His interests are currently focused on real estate, general civil litigation, insurance, and labour law matters. About McKercher LLP: McKercher LLP is one of Saskatchewan’s oldest, largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made us a top ranked firm by Canadian Lawyer magazine (2011, 2013). Expertise, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions. This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.