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Particularly for Millennials and Gen Zers, the lines between work and social lives are increasingly blurred. Social media platforms and smartphones continue to evolve (No Social Media Policy?), and the personal lives and habits of employees are often put on display in real-time for the whole world to see.

When questionable conduct happens at work, it’s easy to refer to the organization’s policy manual, but what about when employees behave badly outside of work? Twitter_logo_blue

The fact is, sometimes employees act in ways we’d rather not think about, but with lives lived much more publicly, sometimes we see things we can’t unsee. Whether it’s a Facebook post that makes you roll your eyes or a criminal charge that makes you break out in a cold sweat, as people managers, we know that employees aren’t perfect. When that questionable conduct happens at work, it’s easy to refer to the organization’s policy manual and respond according to pre-determined performance management, conflict resolution, and disciplinary procedures.

But what about when employees behave badly outside of work?

Off-duty employee conduct is a tricky topic for employers. On the one hand, we would all love it if every employee handled themselves according to the highest moral and ethical standards at all times, even when they’re not at work. On the other hand, our laws start with the assumption that what an employee does on their own time is none of the employer’s business. And if you discipline or terminate an employee based on their conduct outside of work, you could land yourself in the discrimination danger zone.

If an employee’s behaviour makes you cringe (or worse) but it happens off the job, does that mean they have carte blanche to go around doing and saying whatever they feel like?

Not necessarily. There are times when employers may be able to discipline or terminate an employee based on their off-the-clock behaviour, but tread carefully! Generally, there’s a high burden of proof on employers, and to proceed with discipline for off-duty conduct, the employer must be able to answer with an emphatic “Yes” to at least one of the following questions:

  1. Did the employee’s conduct harm the employer’s reputation?
  2. Did the employee’s behaviour render the employee unable to perform his or her duties in a satisfactory manner?
  3. Did the employee’s behaviour lead to a refusal, or inability, of other employees to work with them?
  4. Is the employee guilty of a serious breach of the Criminal Code, adversely affecting the reputation of the employer and its employees?
  5. Did the employee’s conduct hinder the employer’s ability to manage its operations and direct its workforce efficiently?

Employees are the best ambassadors of your employer brand, and it can be tempting to want to monitor and react to their every move outside of work (online or in real life). But the best employment relationships are built on mutual trust and open communication. Take a proactive position on off-duty conduct by:

  • Performing relevant background/social media checks on prospective candidates*
  • Having and communicating an off-duty conduct policy
  • Remembering that good employees make mistakes!

*Note: to mitigate risk, all background checks should be relevant to the position, and carried out by someone other than the individual making the hiring decision.

Your Engaged HR Assignment:

Do you have a policy on off-duty conduct in your employee manual? If not, there’s no time like the present to clarify your off-the-job expectations for employees by putting it in writing! Use the five questions above to guide you, and let us know if you need help crafting policy language tailored to your organization.

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