The CBS reality show Big Brother recently made headlines when two of its female contestants were fired from their jobs back home due to racist and homophobic comments made towards fellow contestants. Because the contestants have no contact with the outside world while on the show, neither person is aware that they have been fired or that their workplaces have spoken to the media about their terminations.
If you’re not familiar with the show, here’s the low-down: Big Brother follows a group of strangers living together in a house outfitted with dozens of cameras and microphones that record their every move… 24 hours a day, 7 days a week. One by one, the contestants vote each other out of the house until the last person remaining wins a cash prize of $500,000.
Aaryn Gries and GinaMarie Zimmerman were both terminated from their jobs earlier this month after their employers witnessed them making racial comments on the live 24-hour feed offered on the CBS website. At first, the televised version of the program did not address the controversy, but it has now aired some of these comments in recent episodes.
GinaMarie (above left) has been employed as a pageant coordinator for the East Coast USA Pageant for five years. Her employer made the following statement: “We have never known this side of GinaMarie or have ever witnessed such acts of racism in the past. We are actually thankful that this show let us see GinaMarie for who she truly is. We would never want her to be a role model to our future contestants.”
Similarly, Aaryn (above right) was fired from her job as a model for the Zephyr Talent agency in Austin, Texas. The agency released the following statement: “Aaryn…revealed prejudices and other beliefs that we do not condone. We certainly find the statements made by Aaryn on the live Internet feed to be offensive. Upon much consideration, we have decided to release Aaryn from her contract with Zephyr Talent.”
These two statements bring forth a number of questions - Were these employers right in terminating these two contestants? Is it unethical to publicly chastise and fire someone “in absentia”? What options does an employer have when an employee has behaved in an appropriate manner, even if they are outside of the workplace and not representing themselves as an employee of your company?
Were these terminations legitimate?
Because most states in the U.S are in an employment-at-will state, an employer does not need a reason to fire an employee and is free to do so at any time regardless of reason. In this type of employment arrangement, engaging in immoral or unethical conduct outside the workplace could be grounds for termination. (Source) However, according to Clear Path senior consultant Anna Aceto-Guerin, “this is far from reality in Canada”.
If this situation were to take place in Ontario, it is likely that this situation would not even end in a termination. For one thing, each employer would first have to wait until their employee was off the television show before addressing the issue. If the employee’s conduct was deemed so unacceptable that it seriously impacted the organization, the employer would be entitled to “terminate with cause”. However, termination "with cause" is difficult to prove and the onus will be on the employer to show that the employee's actions were very serious or show a pattern of behaviour (Source).
Because GinaMarie’s employer clearly stated that they “have never witnessed such acts of racism in the past from her”, it is obvious that this was not an existing pattern of behaviour or the result of a progressive discipline process. Even if it had been been, because GinaMarie was a long-term employee, the organization would also have to show that the incompetence or misconduct had not been condoned by a lack of action on the part of the employer over a long period of time (Source).
So what could be done in this case as an Ontario employer? In this case, it would be best for the employer to issue a formal warning and properly document the incident to begin the progressive discipline process. This warning, as well as any future confrontations, should be clear, concise, and in writing (Source). In the event of another incident, the employer would need to show that the discipline was fairly and consistently applied.
Were these terminations handled correctly?
To answer the earlier question, "Is it ethical to publicly chastise and terminate someone "in absentia"?" - the answer is undoubtedly NO.
In Ontario, the manner in which an employee is terminated (namely that it is done in a sensitive manner and that the employee is not humiliated in the process) matters a great deal. By Ontario standards, not only were the contestants wrongfully terminated, they were also dismissed and criticized publicly on an international scale - something that would likely lead to a Human Rights case. In this province, their employers may be facing financial penalties and/or be required to re-instate the terminated employees. It will be interesting to see how this whole case pans out once GinaMarie and Aaryn are out of the Big Brother house!
Can an Ontario employer terminate someone for behaviour outside of the workplace?
The answer is… it’s complicated. Ontario is not a “fire at will” state and unfortunately there is no blanket answer to this question. You need to look at the facts of each individual case and assess the risk in each situation. It is often challenging for an employer in Ontario to terminate “for cause” even when there are clearly documented performance issues. Attempting to terminate someone “for cause” for behaviour outside of the workplace can be exponentially trickier.
Acts both criminal (arrested for a DUI, possession of child pornography, child abuse or domestic violence) and those deemed “immoral” by an employer (involvement in an extramarital affair, affiliation with a controversial organization) may cause an employer to want to remove someone from the organization, even if the employee’s actions took place exclusively outside of the workplace. The question becomes whether or not they can terminate “for cause” and not have to pay out the appropriate termination pay and/or severance.
Some things for an employer to consideration include:
Long story short, this process should be handled with careful thought and the advice of HR and/or legal professionals.
Conclusion: Reality in Ontario
Clear Path's Anna Aceto-Guerin remarks:
“At the end of the day, although it may be interesting to watch how this HR saga plays out in the reality TV arena, Ontario employers should remember that hoping to apply these termination practices in their own workplaces would definitely not be reality.”
So what do you think? Were these terminations handled effectively? Will we be hearing more about these terminations once Big Brother ends? Leave your answers in the comment section below.
Update 08/08/2013: Spencer Clawson, another Big Brother contestant, recently found himself in similar trouble - except this time, not only with his employer, but with the law. During the show, Spencer made a few comments about how he likes child pornography. However, his idea of humor took a serious turn when his hometown police department found out about the remarks (Source: EW). The police found that no criminal act was committed but, when his employer found out about the remarks, they made the following statement:
"Due to the volume of feedback Union Pacific has received from the public about Spencer Clawson’s August 5 comments on the CBS reality show Big Brother 15, the company wants to reiterate that it has taken all the action it can under the Collective Bargaining Agreement until Mr. Clawson is released from the show. Mr. Clawson took an unpaid leave of absence to participate on Big Brother 15. Union Pacific has notified law enforcement of Mr. Clawson’s August 5 comments."
Looking for more assistance? Clear Path Employer Services offers a workshop entitled “Hiring and Firing Effectively” that takes a look at HR best practices for hiring, employment contracts, changing terms, and terminating. Our next workshop takes place on November 6th in Cambridge. Register here: http://www.clearpathemployer.com/hiring--firing-effectively.html
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If you’ve been following sports at all this month, you’ve likely heard about the number of high profile arrests involving members of the National Football League.
Last month alone, the NFL saw a murder charge against (now former) New England Patriot tight end Aaron Hernandez, an attempted murder charge against (now former) Cleveland Brown rookie linebacker Ausar Walcott, and an illegal weapons charge against Indiana Colts safety Joe Lefeged. In fact, a total of 27 NFL player arrests have happened so far in the 2013 off-season. This is almost double the number of arrests in the professional baseball, basketball, and hockey leagues combined! (Source)
It’s inevitable that all of this negative publicity is hurting the NFL. There are at least 17 different teams touched by the more than two dozen arrests these past few months and anytime a problem extends that wide, it usually runs top to bottom as well (Source). People are beginning to ask questions about how so many “bad apples” are able to slip through the cracks.
This string of charges leads us to the question of how much responsibility, if any, an employer has for an employee’s behaviour outside of the workplace. In this particular case, the NFL differs from a traditional workplace environment in that, once they are a part of a team, they arguably become a representative of that team both on and off the field. So do professional sports leagues have an even greater responsibility?
In response to these concerns, NFL spokesman Greg Aiello told USA TODAY Sports said that the NFL is doing what it can to make sure its players are law-abiding citizens. According to Aiello, “We have policies and programs that hold all NFL employees accountable and provide them with programs of education and support.” (Source).
As NFL Commissioner Goodell noted in 2007 when the league expanded and strengthened its Personal Conduct Policy:
“We hold ourselves to higher standards of responsible conduct because of what it means to be part of the National Football League. It is important that the NFL be represented consistently by outstanding people as well as great football players, coaches, and staff.”
And what are they doing to hold these higher standards? Goodell continued by saying “The NFL has a wide array of policies, programs and resources to assist and encourage responsible behavior by coaches, players, staff and their families. There are awareness and educational programs held year-round throughout a player’s career.” (Source)
Is having a policy enough?
Despite this apparent due diligence, the NFL remains plagued with a high number of arrests. This brings up the next question of whether or not having a policy in place is enough.
To answer this, let’s see how “having a good policy” held up in a past court decision in Virginia. In this case, two workers filed suit for discrimination based on a hostile work environment. Prior to this, the employer had created thorough anti-harassment policies that were adequately distributed to its employees. The employer had even investigated the complaints after they were filed and terminated a supervisor as a result. Seems sufficient, right? Wrong. In the end, the employer had to pay both workers out $2.6 million dollars each. When the court took a look at the facts and recent law, it decided that the issue boiled down to whether the employer effectively enforced its policies. Did the company exercise reasonable care to prevent and promptly correct any harassing behaviour? Clearly the answer wasn’t yes. (Source)
The same can be applied to this situation with the NFL. When the NFL states that it has policies in place that hold all NFL employees accountable – it isn’t enough. The policies need to be effectively and tangibly enforced and paired with a full and impartial investigation into any potentially “risky” players.
In the case of Hernandez – the Patriots were well aware of his troubled past prior to signing him. It’s the balance between talent and character, and whether the talent is worth the risk. In this case, the Patriots thought it was. However, upon learning about Hernandez’s arrest, they promptly cut him from the team and allowed fans to exchange their used Hernandez jerseys for those of any other Patriot’s player.
So, in summary – yes, it is important to have the appropriate policies, programs, and resources in place to ensure that you are bringing aboard the right people. But it doesn’t stop there. It is also important to be sure that everyone in the organization is prepared to carry these procedures out fully and effectively. By overlooking character during the recruiting process to focus solely on talent or performance, you are putting your company’s reputation, workplace safety, and employee morale at risk.
If you need help with a difficult employee situation or any other HR inquiry, Clear Path Employer Services offers an HR-on-Demand service that brings you immediate access to experienced and local HR professionals. To learn more, check out our website: http://www.clearpathemployer.com/hr-on-demand.html
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