In today’s digital age and with many more employees looking to increase their potential income through secondary employment, the lines between personal and professional lives are becoming increasingly blurred. With platforms like OnlyFans offering individuals a means to monetize their content and pursue their passions, traditional notions of employment are being challenged.
So what happens when an employee engages in secondary employment on sites like OnlyFans? Can an employer terminate their employment?
OnlyFans and the Changing Landscape of the Workplace
The workplace as we know it is undergoing a dramatic transformation. Gone are the days when having a single job defined your professional identity. Today, employees are embracing the idea of pursuing side hustles and secondary employment to explore their passions and supplement their income.
Enter OnlyFans – a platform that has taken the world by storm, allowing individuals to monetize their content and connect with fans in ways never before imagined. With its growing popularity, employers are now finding themselves facing new challenges when it comes to managing their workforce.
On SBS recently a former employee of a company disclosed that she was terminated because she had an OnlyFans account https://www.facebook.com/watch/?v=217990147692404.
While some may argue that what an employee does outside of working hours should be irrelevant, others believe that certain activities can have an impact on an individual’s professional reputation. This begs the question: can an employer terminate someone’s employment based on their involvement with OnlyFans?
OnlyFans is a little bit different to other secondary employment
The case of Mr Adam Thompson v Ventia Australia Pty Ltd T/A Ventia [2023] FWC 904 (Ventia Case) received some commentary on OnlyFans.
Commissioner Riordan said in this case “I have never heard of the OnlyFans website before this case. I took … advice and looked at Wikipedia.”
OnlyFans is a subscription based social media platform where content creators can share exclusive material with their subscribers for a monthly fee. While it is not solely dedicated to adult entertainment, OnlyFans has garnered attention for its adult-oriented content. In fact, top creators have been said to earn millions of dollars annually from the site’s popularity.
However, in the Fair Work Commission Ventia case, the Commissioner viewed OnlyFans as:
- Pornography and pornographic material
- The distribution or sharing of OnlyFans content is distributing pornographic material
Other secondary employment such as building websites or doing uber deliveries may not have the same effect as having an OnlyFans account and participating in producing adult entertainment content.
he rise of platforms like OnlyFans has undoubtedly shifted the traditional workplace paradigm. Employers must navigate these changes carefully while considering legal obligations and risks associated with terminating someone’s employment based on off-duty behaviour related to sites like OnlyFans.
Secondary Employment
If the OnlyFans content has been created and sold:
- out of hours
- without any connection at all whatsoever to the Employer,
- did not use company property
- was not done during hours where work was meant to be undertaken or it has effected the ability to undertake the work
The usual view is that secondary employment could not lead to termination of employment unless permission is required via a policy or the contract of employment.
However depending on the industry and the job of the employee, there is a common law test that can be utilised around secondary employment:
- the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
- the conduct damages the employer’s interests; or
- the conduct is incompatible with the employee’s duty as an employee.
For regulated professions, possessing an OnlyFans account and sharing explicit content could potentially conflict with professional duties and continued employment if it showcases any of the following behaviours:
- One must exercise proper judgement, taking into consideration both the potential risks and their contractual and ethical obligations.
- Under specific conditions, neglecting to reveal pertinent information that pertains to the policies or contractual duties.
- Neglecting to establish professional boundaries for both physical and online safety;
- Demonstrating a lack of concern for the employer’s reputation.
On the basis of the above, misconduct could be found. In particular if the industry is regulated or the position involves dealing with children or religious stakeholders.
Misconduct and Reputational Damage
Employers have a right to protect their brand image and reputation. If an employee’s actions on OnlyFans or any other side hustle platform reflect poorly on the company or violate its code of conduct, it could result in termination of employment.
But what constitutes misconduct? It can range from sharing sensitive company information to engaging in illegal activities or displaying behaviour that goes against the organization’s values. Employers must carefully evaluate each case to determine if there has been a breach of contract or a violation severe enough to warrant dismissal.
Reputational damage is another critical factor for employers. In today’s digital age, news travels fast and scandals can go viral overnight. Any association between an employee’s behaviour outside of work and their employer can impact public perception and potentially harm business relationships.
Companies must balance protecting their reputation with respecting employees’ rights outside of the workplace. Human resources departments play a crucial role in addressing these situations by conducting thorough investigations, considering all relevant factors, and adhering to fair dismissal procedures if necessary.
Navigating this changing landscape requires open communication between employers and employees about expectations regarding secondary employment activities. Clear policies should be established that outline what types of side hustles are allowed and under what conditions they might lead to termination.
While it is essential for companies to safeguard their reputations, dismissing an employee without proper cause could expose them to legal risks such as claims for unfair dismissal, General Protections or breach of contract. Striking the right balance between protecting one’s brand image while respecting individual rights remains paramount in this ever-evolving landscape influenced by platforms like OnlyFans.
What can an Employer and Human Resources do?
The rise of platforms like OnlyFans and the increasing prevalence of secondary employment have brought about significant changes to the landscape of employment law. Employers are now faced with new challenges when it comes to terminating employees who engage in activities outside of their primary job.
When it comes to addressing issues related to OnlyFans and other side hustles, employers and human resources professionals must navigate a delicate balance between protecting their organization’s interests and respecting an employee’s right to privacy and personal pursuits. Here are some steps they can take:
1. Review Employment Contracts: Employers should carefully review their existing employment contracts to ensure that they include clear provisions regarding secondary employment or conflicts of interest. By explicitly stating what is considered acceptable or unacceptable in terms of engaging in side hustles, employers can establish a framework for addressing any potential issues that may arise and in particular that permission must be sought to ensure there is no conflict of interest or that it would cause reputational damage.
2. Develop Policies: Organisations should consider implementing specific policies that address secondary employment activities such as OnlyFans participation. These policies should outline expectations, guidelines, and consequences for breaches. In particular, it should be made clear that permission should be sought prior to undertaking any secondary employment.
3. Training: Training is key. The Ventia Case actually set out that in person training is preferrable and should be done as much as possible. Gone are the days that common sense might prevail – clearly setting out expectations and standards of behaviour needs to be done both in writing through policies and verbally and visually through People management training something the team at NB Employment law do – check out this link to some information on our training workshops https://vimeo.com/872426278
4. Seek Legal Advice: Given the complexities surrounding these emerging legal issues, seeking guidance from lawyers will mitigate liability and risk
5. Termination of employment is possible: Termination of employment is possible and there are many avenues, however, care should be undertaken as we do have some guidance from the Ventia Case but it is still not a completely tested area. We could rely upon misconduct, breach of contract or policies, secondary employment effecting their current work or reputational damage or a combination.
Give NB Employment Law a call we offer an obligation-free consultation and are happy to help. Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
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Written By
Director
About the Author
Jonathan Mamaril leads a team of handpicked experts in the area of employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
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