Howard Levitt: What can possibly be Jeffrey Toobin’s defence — and can he ever return to work?

In employment law, there is no stupidity defence.

Jeffrey Toobin, a writer for the New Yorker magazine and CNN’s chief legal analyst, was suspended Monday for reportedly masturbating while on a Zoom call with the magazine’s staffers and those of a radio station.

Toobin’s defence? He claimed that the camera feature had been disabled during a short break. He will likely argue that he was unfamiliar with the technology and therefore made unwarranted assumptions about how it worked. That, in my view, will be an inadequate defence, at least if he was in Canada, given the high-risk reputational behaviour he engaged in.

The higher your workplace risk, the less tolerance there is for mistakes. Falling asleep on the job once would unlikely be cause for discharge for most blue-collar employees. But if they are guarding a major Brinks shipment of bullion, it would be. The fact that one has simply made an error in judgement is generally relief from the ‘capital punishment’ of cause for discharge, but not if it’s of the magnitude of risk taken by Toobin.

There is no legal difference in expectations between a Zoom call and a workplace in-person meeting. Both are now workplaces and employees have the concomitant obligation to comport themselves. Legally, Toobin’s conduct is only an extreme instance of misconducting yourself in any workplace meeting.

But even if the Zoom meeting had not been legally at a workplace, the brand-damaging aspect of his conduct is cause for discharge. To explain why, imagine watching the U.S. Presidential election night coverage on CNN and its chief legal analyst Jeffrey Toobin came on air and began pontificating. What would most viewers’ minds (and eyes) drift to?

The law in Canada is such now that conduct, particularly public conduct, of any type which brings disrepute to your employer, is cause for discharge. But, of course, conduct inside the workplace itself, as Toobin’s legally was, is more likely yet to be cause for dismissal.

Working from home has dramatically expanded the workplace. It’s not merely Zoom meetings. Many employers, quite legally, have spyware or tattleware, on employees’ computer, detecting what they are doing during each working day.

Employees are often required to call in or accept calls to account for themselves, just as they would have to account for themselves if they were at work. Many view this as an unwarranted intrusion on their privacy rights. But the truth is, there is little in the way of ‘privacy rights’ in Canadian workplaces.

Employers are entitled to the same quantity and quality of information regarding remote employees’ whereabouts and activities during the workday as if they were still in the office.

And that’s likely to intensify if remote work continues beyond a relatively short period as employers, who were prepared to relax restrictions on the assumption that COVID-19 would be short lived, reassert the controls that they had on employees in the office. In the same way that many Canadian employers eliminated smoke breaks because of their impact on efficiency, companies will expect employees to be working during office hours and will insert technological devices required to ensure that.

Toobin quickly issued a statement: “I made an embarrassingly stupid mistake, believing I was off-camera. I apologize to my wife, family, friends and co-workers… I thought no one on the Zoom call could see me. I thought I had muted the Zoom video.”

Toobin’s plight shows the advantage of employers obtaining a quick confession before an employee has the opportunity to lawyer up and reconsider their best strategy. In Canada, and likely in most U.S. states, his better defence would have been that he had a psychiatric disability resulting in his intentional or risky exhibitionism. That way, it would be difficult to fire him without paying potentially hefty additional human rights damages and the dismissal being deemed wrongful if rehabilitation was not first offered.

That’s another reason why hiring outside investigators to conduct full-blown investigations, rather than having the HR department swoop in and quickly interview the employees involved, generally produces worse results in terms of obtaining confessions and building a case.

Of course, in Toobin’s particular case, he likely would not have changed his story, whatever the reputational impact. For his future career and public reputation, being characterized as psychiatrically disturbed would be a worse choice than being perceived as simply careless.

CNN said Toobin had requested leave, which it had granted. It is commonplace for employers to suspend employees, whether calling it a leave or otherwise, either while an investigation is ongoing or while making a decision.

Sometimes they do so to ascertain where the political/reputational winds are blowing before deciding how to proceed. What employers (and employees) should realize is that suspensions are not a neutral act. I cannot recall anyone suspended during an investigation ever returning to work. Either they are too humiliated to return (and threaten to sue the employer if proper severance is not paid) or the employer realizes that the act of suspension itself has made the employment relationship untenable. Employers should therefore understand that such a suspension is almost always dispositive of the employment relationship.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.