Following the recent Capitol Building storming in Washington, D.C., many rioters were identified and then arrested. Many of the individuals also lost their jobs when their employers learned of their conduct and involvement with the event.
The U.S. Capitol riots are a stark reminder that employers may terminate employees for cause, without any notice or pay in lieu of notice, as a result of their off-duty conduct.
Generally, employees are free to do what they like on their own time; their actions away from the workplace are free from scrutiny by their employers. However, there are circumstances where employees' off-duty conduct may result in the termination of their employment.
In order for employers to terminate for cause in these circumstances, they must establish a connection or nexus between the off-duty conduct and the employment relationship. This nexus exists where the conduct:
- detrimentally affects the employer's reputation;
- renders employees unable to properly discharge their employment obligations;
- causes other employees to refuse to work with the employee in question; or
- inhibits the employer's ability to efficiently manage and direct the production process.
Finding a link between the conduct and the employment relationship is a fact-specific inquiry. The following factors are relevant to the inquiry:
- the degree of moral reprehensibility of the conduct;
- the nature of any charge against the employee; for example, whether it is a criminal charge, an administrative penalty or a civil charge;
- the degree of public trust and confidence required for the employee's role;
- whether the public is aware of the misconduct;
- whether the employee's role is administrative or public-facing; and
- peer support of the employee, or lack thereof.
The accessibility of social media and cell phone cameras has led to an increase in employees being disciplined or terminated as a result of their off-duty conduct. Employee conduct that goes viral on social media can attract negative attention for employers. Videos and other information circulated in the internet can readily confirm both the identity of employees and the nature of their conduct. These videos may demonstrate the employees engaged in illegal or violent conduct outside the workplace. Given the nature of the employment, this conduct may support termination for cause.
Following the Capitol Building riots, numerous participants who were employed as police officers, firefighters, teachers and politicians were terminated from their employment.
Prior to taking any disciplinary action or dismissing an employee for off-duty conduct, the employer must conduct an investigation into any alleged off-duty conduct. Our labour and employment team has experience advising on and conducting workplace investigations as well as advising on terminations for cause and can assist employers with incidents of off-duty misconduct.
Originally Published by MLT Aikins, January 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.