By Victoria Merritt.
The world is online. Everyday interactions go viral and wreak havoc.
Recent examples: Videos of a woman calling the police on a bird-watcher in Central Park and “debunking” COVID-19 myths were posted online, and resulted in an immediate backlash which included identifying the involved individuals’ employers and calling for consequences. In the first case, the responsible employee was put on administrative leave, then fired. In the second, the debunker was asked to step down from her role as vice chair of the Scientific Committee of the Innovative Medicines Initiative; her fate as a university professor is unknown, although controversial.
The people who figured out the identity of these women’s employers and contacted them engaged in a form of an activity known as doxing or doxxing, a term for where an individual shares private information about someone online.
Typically, doxing involves an individual discovering the real identity of an Internet user who was posting anonymously, and then sharing that information or targeting that person by contacting their family, friends or – you guessed it – employer. However, the term would also seem to cover the conduct of the people who identified and contacted the employers in the Central Park and COVID myth cases.
Sometimes, people engage in doxing to expose clearly inappropriate online conduct. Other times, a person may object to conduct based on his or her personal beliefs. A person may also get “doxed” where the accusations are completely false or there is a case of mistaken identity (as happened to an Arkansas professor).
Whether doxing itself is legal is an interesting question, but beyond the scope of this particular post.
What is important for our purposes is that doxers may contact an employer about an employee’s online, off-duty and (up until now) anonymous conduct. In such cases, employers should keep in mind that such contact may be malicious, and that the allegations could be false, exaggerated, or relate to conduct that is not relevant to an employee’s ability to perform their work.
So, can you fire an employee for online (mis)conduct? The short answer is: it depends.
On one hand, your employees are allowed to have political views and personal opinions, and should be able to freely express or debate those opinions online. On the other, employers are permitted to protect their reputation and respond to off-duty conduct that jeopardizes their operations.
Off-duty (including online) conduct can potentially justify a for cause termination where it:
- Harms the employer’s reputation or product;
- Prevents the employee from satisfactorily being able to perform their duties;
- Results in other employees refusing to work with them;
- Is a serious breach of the Criminal Code that injures the reputation of the company; or
- Makes it difficult for the employer to efficiently and effectively manage the work force.
Before taking any steps toward dismissal, employers need to consider the nature of the employee’s online content.
Discrimination, hate-speech, harassment, bullying or threats of violence are all areas that require a response, including a thorough and impartial investigation. Depending on the severity of the allegations, an employer may consider putting the employee on an administrative suspension, with pay, while it conducts the investigation.
If the online content does not fall into one of those categories, it will be harder for the employer to justify a with cause termination. For example, a heated debate about flat-earth theory or the 2020 federal budget is unlikely to be something an employer can take issue with. Having said that, if such topics are incompatible with the employee’s work (as in the case of the COVID-19 myth debunker, who worked for a scientific organization), the employer may have cause to terminate. A hypothetical example would be where a NASA employee expresses the opinion online that the moon landing was a hoax.
Even if there is no cause for termination, it is still open to an employer to dismiss an employee without cause (and provide appropriate notice or severance). In such cases, the key thing to remember is that an employee’s political and religious beliefs are protected by human rights laws – a dismissal that amounts to discrimination on one of these bases could open the employer up to a human right claim.
The bottom line? Employers should be cautious when responding to online employee conduct, even if that conduct has “gone viral”. In even the most seemingly clear cut circumstances, we encourage employers to consult with an employment lawyer.
Have questions about an employee’s online conduct? Contact us!