This modern age of social media has left many people in a state of chronic oversharing. Do we really need to see what our friends, family, coworkers, (or that girl I went to elementary school with) are doing at any given moment? While Instagram, TikTok and Facebook would answer in the affirmative, this current social media climate creates certain challenges for employers, requiring them to navigate off-duty conduct in an era where personal and professional boundaries can easily blur online.
First things first: employers generally can’t interfere during employee off hours. This means employers can’t police their employee’s social media accounts or tell their employees how to dress when they aren’t at work.
However, where the employee’s after-hours escapades have a “justifiable connection” to the employer or their job, the same rules may not apply!
If an employee’s off-duty antics meet certain criteria – like harming their employer’s good name or rendering the employee unable to satisfactorily perform their job – then disciplinary action may be warranted.
Now, onto crafting those oh-so-crucial employer policies regarding employee conduct. While we can whip up rules faster than you can say “delete that Onlyfans account,” there are limits to our legislative prowess. Employer policies relating to off-duty conduct must be fair, non-discriminatory, and clearly communicated.
Finally, let’s not forget about enforcement, where consistency is key! If Karen gets a slap on the wrist for her after-work antics (probably due to the post-pandemic stigma related to “Karens”) while John gets a free pass, the employer will find themselves in some hot water.
Be forewarned: the bar for proving that discipline for off-duty conduct is justified is quite high. Hold off on policing any off duty conduct without getting a legal opinion first!
Robin K. Mann, Associate Lawyer
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