Canadians were shocked late last week to learn that CBC had parted ways with Jian Ghomeshi, popular host of its syndicated radio show Q.
But the story took on new life over the weekend when the network announced that it was his alleged inappropriate behaviour away from work that prompted the decision to terminate. That was followed by a revelatory 1,600-word Facebook posting by the former Moxy Fruvous singer explaining that, in his view, the CBC terminated his employment based on their moral judgements of his BDSM (bondage-discipline-sadomasochism) preferences in the bedroom. Since Ghomeshi published his case, several women—including Trailer Park Boys actress Lucy DeCoutere—have come forward with public accusations of violence against the host. (As of publication time, no charges have been laid.)
The case raises an array of labour relations and employment law questions that will surely be answered in the weeks and months ahead as more information comes to light.
But at this point you may be wondering how the Ghomeshi story relates to your business. On the surface, it doesn’t. After all, it’s highly unlikely that any smaller business would ever face such a public brand crisis because most never employ—or create—national celebrities. But that doesn’t mean you’re protected. What happens when a senior vice-president, a prominent PR staffer or a top sales representative behaves badly away from work?
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That’s when the issue of morality clauses in employment contracts becomes relevant.
What, exactly, is a morality clause? Think of it as an employment contract provision that stipulates acceptable employee behaviour both inside and outside of the workplace. The purpose is to limit or prevent direct financial or reputational harm to the employer.
Morality clauses provide employers with a kind of contractual escape clause that protects them from egregious transgressions—criminal or not—on the part of their employees. These clauses have traditionally been included in the contracts of elite athletes and celebrities whose names and endorsements can make or break a brand, but increasingly we’re seeing them included in general employment contracts across Canada.
The benefits for employers are clear—the breach of a morality clause can result in immediate dismissal with cause, meaning the employee is entitled only to limited payments and no other form of compensation. Given that the definition of moral turpitude can be wide and open to interpretation, it’s no wonder these clauses are becoming more popular.
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Notably, these clauses have become even more desirable for employers since the advent of social media and platforms such as Twitter and Facebook, which which have given employees the power to publish their thoughts on a range of issues—not to mention sharing often intimate details of their personal lives in photos or videos. Because the personal and private tend to overlap and intermingle on social media, employers have taken exception to what they deem to be inappropriate content posted by some employees. That can include when those employees are inadvertently tagged in photos or videos behaving in ways their bosses deem to be detrimental to the organization’s brand or reputation.
Here are a few examples when a morality clause may be enforceable and used to terminate an employee:
- The employee allegedly engages in criminal activity that could damage the employer’s reputation by association—even if the allegations are not proven in court.
- The employee engages in social media or online activity that violates the organization’s code of moral conduct. Think disparaging comments about the employer or racist musings, as just two examples. Many employees who engage in this sort of behaviour using company mobile devices or laptops realize when it’s too late that evidence can be extracted from those devices without their consent, then used as evidence to justify their termination.
- The employee associates with known criminals or other unsavoury characters, and these relations are found to be potentially injurious to the employer’s reputation and brand.
- The employee’s extracurricular behaviour threatens the safety or well-being of others in the workplace when it occurs away from work, or violates provincial occupational health and safety legislation.
It is important to note that case law has shown that courts will uphold these provisions only when they are clearly defined and carry a very specific and limited scope that in no way violates the employee’s human rights. That means these clauses must be clearly outlined in employment contracts or workplace conduct policies. It also means that morality provisions cannot prevent employees from supporting a political party or practicing a specific religion, for example (although some employers, such as denominational school boards, have argued successfully that their religious beliefs allow them to hold employees to a different moral standards).
These clauses must be clearly outlined in employment contracts or workplace conduct policies
Furthermore, proving that the employee’s behaviour caused clear harm to a business—a critical test— is often challenging, to say the least.
There’s another risk to consider in enacting morality clauses: they can be off-putting to potential employees, which is of particular concern for organizations hoping to attract top talent in highly competitive fields. Many savvy professionals will simply refuse to sign a contract with a morality clause, thereby forcing their prospective employer to either amend those terms and hire them without a contractual escape hatch—or move on to the next candidate.
Read: What Employees Want
How the Ghomeshi case unfolds is anyone’s guess, but for business owners it offers an important lesson: when a prominent employee comes to personify their brand—then proceeds to bring their its reputation into question with dubious after-hours activities—morality clauses can be a useful way to protect your business.
Laura Williams is an employment lawyer and founder of Williams HR Law in Markham, Ont. She has more than 15 years experience in providing proactive solutions to employers aimed at reducing workplace exposures to liability and costs that result from ineffective and non-compliant workplace practices.
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Would you insist employees sign morality clauses? Why or why not? Share your thoughts by commenting below.