The labour market is hot, but looking for your next job while at work can get you fired

By Howard Levitt and Alexis Lemajic

Employees are required to devote their full time, attention and energy to proper performance of their duties

Employee turnover, job openings and active job seekers are par for the course in any healthy economy — but what about the current environment? With demand outpacing supply, many employers are grappling with enduring vacancies they cannot fill and repeated demands for increased compensation. They are also being forced to settle for short-tenured workers when they do manage to fill positions.

We have written about the “Great Resignation.” Many industries, such as accommodation, food services and warehousing, are simultaneously experiencing a labour shortage. And it is no secret that many workers have leveraged flexible work arrangements to upskill, reset, rethink and — in many cases — change their career paths entirely. As the “quiet quitters” persist, it is hard to argue with the notion that it is, in essence, an “employee’s market” out there. But how an employee goes about securing a new job can still get them into trouble.

We often hear about how the pandemic has brought new freedoms, including the ability for remote employees to actively search for new employment largely undetected by their employer. This intensifies the war for talent and makes employee retention a full-time job for many human resource departments. Pre-pandemic, employees would have to book time off and fight traffic and transit systems to attend interviews. Now, a simple Zoom or Teams call from home with a suit jacket (likely paired with sweatpants and some innocuous virtual background) for 30 minutes or so is often sufficient to win the position or, at least, advance to the next round of interviews. Better yet, employees might spend paid work time updating their CV or resumé on company-supplied laptops. This makes job seeking more convenient and efficient and tilts the cost-benefit analysis — driving across town, for example, to that job interview you only feel “sort of” excited about is no longer a hindrance. So, you apply from home on work time and on work equipment. No harm, no foul, no one will ever know — or so one might think.

Employees should carefully consider their actions before taking this careless approach for a few reasons.

First, employers are entitled to have work performed during all the hours for which employees are paid. That means that any significant time spent during working hours preparing application materials or attending interviews could ultimately amount to time fraud which, depending on unionization status and the prior disciplinary history of that particular employee, could be grounds for termination with cause. In other words, your employer could walk you to the door with no further obligation.

Second, employees owe a duty of loyalty and good faith to their employers. This does not mean that employees are married to their jobs for life, never allowed to job hunt or look around for better opportunities. It does mean that employees are required to devote their full time, attention and energy to proper performance of their duties, regardless of whether this term is codified in an employment agreement. Depending on the “personal use” language of any applicable contracts or policies, employees may also be prohibited from using company property for job seeking activity.

Third, certain employees known as fiduciary employees — key, valuable and trusted employees, often but not necessarily in managerial positions — owe a duty of full disclosure to their employer where their actions might be contrary to the best interests of the organization. In 2000, the Ontario Court of Appeal held that Kurt Felker, a former employee of Electro Source, was such a fiduciary employee. Felker was largely responsible for daily operations in a key revenue region, and as a result, the court found that he was a key employee. Kurt had used company time and resources at Electro Source to create a PowerPoint pitch for a new opportunity at Microchip, resulting in a conflict of interest ultimately punished by the court as termination for cause.

You might be thinking: “So what? My employer will never find out that I updated my CV on my Lenovo or used my work cell to complete a screening application or took a 2:30 p.m. Zoom call on my personal computer last Tuesday.” Surely you would know if your “Big Brother” employer had been tracking your online activities, right? Not necessarily.

Employers will recall that earlier this year, the Ontario government announced changes to employment legislation requiring employers with 25 or more employees to have a written policy on electronic monitoring of employees in place by Oct. 11 — now just around the corner.

“Electronic monitoring” includes website tracking and device monitoring and may even extend to activities on personal computers or devices that are used for work purposes during work hours, regardless of whether an employee works on-site, remotely or under a hybrid model. Further, the required policy must include a description of how and in what circumstances the employer electronically monitors employees and for what purpose any information obtained may be used.

While employee monitoring prior to Oct. 11 may engage certain privacy laws, it is currently not captured by employment legislation. Remote job seekers could be providing their employers with just the armament needed to cut loose quiet quitters and underperformers before they have secured their next opportunity — all without their even knowing it.

Our best advice to employees? Save the job search for your personal equipment after working hours and contact an employment lawyer for advice if you think you may be a fiduciary.

This article should also serve as reminder to any employers who have yet to update their policies as the Oct. 11 deadline draws near.