Don’t Get Caught With Your Employees’ Pants Down – Avoiding Exposure From Your Employees’ “Exposure”

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP

Picture this, you get a frantic call one morning that one of your star employees, a middle-aged mother of three, has been outed as having an account on – a website where she posts salacious photos and videos of herself under a pseudonym to a network of monthly subscribers. Not only is she the last person you expected to do this, but she has a visible role both internally and externally in the company. She would be difficult to replace. You are concerned that her indiscretion could create a distraction, call your company into disrepute, and cause others in the workplace to engage in inappropriate behavior.

You don’t have to look far for examples. The popularity of websites like OnlyFans has exploded during the COVID-19 pandemic, as people have sought to replace lost income or earn additional income while stuck at home. This can have dire consequences when it bleeds into the workplace and create no-win scenarios for employers. For example, this article reports the firing of a female mechanic after her male co-workers found out about her OnlyFans account. The discovery resulted in distractions in the workplace, sexual harassment by numerous male coworkers, and an allegation that the employer fired her while male employees who appeared on their girlfriends’ OnlyFans videos were not fired. After the employer, a Honda dealership in Indiana fired her, the employee took to social media to complain about the injustice of the firing. The employer is now “internet famous” for all the wrong reasons.

While much could be said about damage control in this situation, an ounce of prevention is worth a pound of cure. In general, it is perfectly legal for private employers to regulate employees’ activities outside of the workplace, many employers are way behind the curve. Many “moonlighting” policies are short and vague statements simply stating that employees must get approval from management before accepting outside employment. This may have been effective in 1995, but it completely misses the point in the era of social media, the gig economy, and the side hustle.

A traditional, and likely obsolete, moonlighting policy is designed to prevent an employee from taking a second job that would distract from her efforts on behalf of the employer or create a conflict of interest. Many employees would not even understand the traditional moonlighting policy as applying to the gig economy because they don’t perceive their side hustle to be “employment” in the first instance. They may assume that driving for Uber does not create a conflict of interest because it is completely unrelated to the business of the employer and they are unconcerned about not being available to the employer because Uber allows them to set their own hours and work as few or many hours as they want. One could make the same argument about OnlyFans, Twitch, or any variety of other social media platforms.

Given the shifting economy and availability of novel ways to earn income, employers should consider coordinating their moonlighting policies with their social media policies. The result should not merely be a moonlighting or “outside employment” policy, but an “outside activities” policy that governs an employee’s activities outside of work regardless of whether the employee derives an income. It should remind employees that they should refrain from any activities that could call them into disrepute because such activities could easily create a public relations problem for the employer, cause distraction, and jeopardize the employer’s ability to continue to employ the employee. The policy should remind employees that they will be responsible if their internet exploits are discovered, regardless of whatever efforts they made to keep their activities private. This policy should be treated as being on equal footing with the employer’s anti-sexual harassment policy, meaning the employer should regularly remind employees of the policy’s importance and expectations.

None of this is new, but it has taken on greater prevalence and importance. One thing is for certain, which is that it is here to stay. So time to plan for the future. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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