Employee Ousted Over OnlyFans: Canadian Justice Interview

Interview Summary

Many individuals across Canada have full-time positions and side jobs they work in their spare time. Can employee “side hustles” interfere with their primary source of income? Do employers have the right to dictate what employees can do outside of the workplace?

An education assistant in B.C. with an OnlyFans account has been terminated as a result of her profile and refusal to take it down. What are non-unionized employees’ rights under these circumstances?

Mackenzie Irwin, an Ontario employment lawyer and Associate at Samfiru Tumarkin LLP, joined host Christine Van Geyn on Canadian Justice to discuss the ongoing suit and employee rights after a termination occurs.

Interview Notes

• Employee rights to “side-gigs”: Employment laws in Canada generally do not prohibit employees from working several jobs. Employees should be mindful that their other jobs do not conflict with their main employer’s best interests. Employers that wish to protect their own reputation should include an exclusivity clause in their employment contracts.
• Definition of moonlighting: Employees who have yet to see a profit from other business ventures could still face consequences for moonlighting. Some employers do have policies in place that outline the conduct expected from an employee, both within the workplace and externally. Employees should remember that employers have the right to protect their public image.
• Reputational harm or embarrassment: In order to determine what is potentially embarrassing or damaging to an employer’s reputation, there are many factors that must be taken into consideration; an employee’s role in the company, the type of industry, the behaviour an employee is engaging in, etc.
• Protecting an employee at the workplace: Employers have an obligation to provide a safe work environment for all staff that is free from harassment. This obligation extends to investigating complaints of harassment from employees regardless of the root of the bullying or abuse.
• No identification in online profiles: Despite no possible facial identification or direct connection to an employer, employees should be wary of all posting online or through social media.
• Terminations “for cause”: Employers generally would not be able to terminate an employee “for cause” due to off-duty behaviour. Terminations for cause are very difficult to justify and are reserved for serious misconduct, such as theft or fraud. Employers would still be within their rights to terminate an employee as long as adequate severance is provided, and there are no human rights violations.
• Employer approach and possible discipline: Employers wary of their employees’ other sources of income should contact an employment lawyer to determine how to proceed. Employers should also ensure they have adequate policies in place regarding employee conduct, and if an employee is in violation of a policy, ensure they have the time to correct their behaviour.