When employers police your private life

Michael Brutsch, a Texan who worked in financial services, and Justin Hutchings, a former Mr. Big and Tall employee from Ontario, have both been fired recently for messages they posted online, on their own time.

The cases of Brutsch (Reddit username: Violentacrez), who shared pictures of scantily clad, underage girls and images of women getting beaten on various forums called subreddits, and Hutchings, who posted a negative comment on Amanda Todd’s tribute page on Facebook, have raised tough questions over the extent to which HR departments may be called on to police employee behavior in the age of social media.

“Standard HR practice is now to, without question, Google people’s names, even before reference checks,” says Blaine Donais, president of the Workplace Fairness Initiative. But it may not stop there, as human resource professionals are increasingly using social media tools to monitor the non-work, private lives of staff; a trend blurring the lines between public and private, and exposing out-of-date labour legislation, say experts.

Unveiling the identities of the two trolls (a term used to describe someone anonymously posting extreme material on the Internet meant to elicit a strong reaction), resulted in both of them losing their jobs. Most would agree the comments and posts in question are distasteful and unworthy of defense, but the quagmire is in the complexities of an employer’s ability to police employees outside of office hours.

“In non-unionized work environments an employer can fire employees for almost any reason, provided adequate notice is given,” says David Doorey, professor of employment law at York University.

Online opinions can go viral; they can incite anger and create groundswells large enough to destroy and exploit lives, or, in Amanda Todd’s case, play a
tragic role in the end of a life.

Labour legislation explicitly addressing the consequences of posting offensive, radical content online may be a solution for dealing with cases like these, suggests Doorey, but such a move would stir debate over an individual’s right to free speech.

Both Brutsch and the Amanda Todd commenter wrote and posted using pseudonyms, a step some may see as them exercising due diligence in protecting their public identities (however reprehensible their actions).

“The law struggles with a case like this, because what matters is whether the employer’s economic interests were harmed by the employee’s conduct, and not whether the employer disagreed with the content of the employee’s expression,” says Doorey.

Yishon Wong, the CEO of Reddit, went on record, defending Violentacrez against calls for his ban from the site. Wong’s argument was against censorship, and not a specific endorsement of what was posted. “If we think people ought not to lose their job for expressing their views on the Internet, we would need to legislate that,” says Doorey. “This could be done, easy enough.”

Ultimately, employees should assume their employers are monitoring their social media activity and, as such, should be mindful of what they post on the Internet, according to human resource professionals. “Our lives are public like they’ve never before been,” says Donais. ”And the connection between private and public life are very blurred. We live in a brave new world.”