Employment Law: Is Online "Adult" Activity Relevant to the Workplace?

This will be an interesting topic for a Saturday.

Wired has an article today, Sex and Nudity Aren't Good Reasons to Fire Someone, discussing recent incidents in which U.S. employees have been terminated after their online, "adult" alter-egos were discovered by their employers:

An Ohio teacher was fired last month after his private nude photos were posted online without his knowledge and then discovered by administrators. In February, Michelle Manhart was demoted from Air Force staff sergeant to senior airman and then reassigned to the Iowa National Guard, simply for posing in Playboy without first obtaining the Air Force's permission.

A New York Post article about how online activities affect a job hunt cites an example of a manager who was fired after his bosses found his pictures on an erotic dating site. Not because he was using company time to update his profile, but because "he showed extremely poor judgment by making such a personal matter public."

It makes you wonder what the bosses were doing at the dating site.

While we have acted (successfully) for individuals who have been wrongfully dismissed after their employers contended that workplace usage of company email and internet facilities was improper, the Wired article documents a clear escalation of online spying activity by employers, beyond the confines of the workplace itself.

It seems at first glance that under Ontario law, this type of online extra-curricular activity would in most cases be simply irrelevant to employment performance, barring blatant online illegality or other workplace-related posting that would directly impact the employer.

There would be no grounds whatsover for job action by an Ontario employer, in most circumstances, from this form of online expression.

Beyond that, in certain instances, the Ontario Human Rights Code might well prohibit discriminatory employer action on the basis of indiscreet online activity alone.

But, legal considerations aside, the Wired story does highlight the reality that online personnas are eminently searchable - if you don't want something to be seen by co-workers, mothers or others, you probably would be well advised against posting it.

You may have some entitlement to privacy - but you cannot prevent others from finding that which you have knowingly put "out there." Therefore, play as you may, but be aware - consequences may follow.

Caveat emptor.

Addendum - April 17, 2007 - This related, cautionary note comes from The Journal of the Business Law Society, University of Illinois College of Law:

Make sure your Facebook and MySpace profiles do not have/reveal anything incriminating about you. Employers will check before an interview.” Come again? The hiring partner of a Vault 100 firm is going to “friend” me?

As incredulous as I was, I began to see this advice echoed throughout a variety of mediums. As The New York Times reported: “…recruiters are looking up applicants on social networking sites like Facebook, MySpace, Xanga and Friendster, where college students often post risqué or teasing photographs and provocative comments about drinking, recreational drug use and sexual exploits in what some mistakenly believe is relative privacy.” More than one recruiter admitted to denying a candidate based on what the candidate’s online profile had revealed.

Garry J. Wise, Toronto

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