In case you have been living under a rock for the past month the Pokémon GO game craze has hit Canada. Players catch, trade and battle Pokémon that pop into existence alongside real-world physical objects when viewed through a smartphone. A large element of the game requires players to travel to various locations to engage Pokémon.
In less than one month Pokémon GO is reported as being on more than 6 percent of Android devices in Canada, it is the most downloaded app in the history of the App Store and in the past weeks it has had more active users than twitter with more engagement than Facebook.
The game’s level of engagement means a number of people are playing it during their working hours and productivity is likely impacted. After all, employees have been reported to have left the workplace on unscheduled, unapproved and extended breaks to catch or train Pokémon. The result at this time seems to be a number of amusing signs posted in workplace but the concern should be greater and knowledge around the topic of time wasting should be understood and properly monitored.
Generally, an employee found playing games on company time does not justify a termination for cause. Stated differently, catching Pokémon during working hours is unlikely to justify a dismissal without proper notice or payment in lieu of notice. A termination with cause is regarded as the capital punishment of employment law and time wasting of this sort is not enough to justify it.
Despite the above, various factors could influence a judge to uphold a just cause dismissal. For example, a disciplinary record tied to time wasting / time theft; game playing while driving or using company equipment (putting the safety of others at risk), an employee’s senior level, game play on a company issued devices, frequent game play, attempts to conceal or deny the misconduct and/or an intentional violation of a company cell phone, hours of work, internet or distracted driving policies may justify a with cause termination.
Employees should be mindful that even though it is unlikely that their employer can justify a termination for cause on account of Pokémon GO game play they are certainly not free from serious consequences. Most of Canada’s non-union employers can still impose other discipline and certainly terminate without cause. Stated differently, employees can be fired for playing the game so long as an employer provides notice of that termination or makes payment in lieu of notice. If a valid termination clause is in the employment contract the employer might only need needs to provide a few weeks’ notice before the employee becomes a full-time Pokémon GO hunter and Employment Insurance collector.
It will not be long before Pokémon GO results in reported dismissals but don’t let the excitement cloud your reality. If you have any questions on this topic or other areas of employment law consider contacting our team to assess you situation. If you are looking for well thought out options our team is well equipped to “catch ‘em all”.
Author: Paul Macchione, Whitten & Lublin