Modern workplaces face new challenges in managing employees with unique side hustles and online endeavors. One recent challenge that has gained attention is the employment of individuals with OnlyFans accounts, an online platform with around 200 million global users.
Many employees will have other less contentious ‘side hustles’ that may or may not create difficulties for your business, whether that is because of a conflict of interest or the potential for reputational damage.
Employers must tread carefully, as the legal and ethical implications of an employee's side hustle can be complex.
Is There a Reason for Concern?
First and foremost, it's essential to understand that an employee having an OnlyFans page is not inherently a reason for employers to take formal (or moral!) issue with it. While this platform is known for its adult content, the mere existence of an account should not automatically raise red flags. Generally speaking, the real concern for employers should be whether an employee's OnlyFans page could potentially harm their business interests.
The Hidden Nature of OnlyFans
One crucial aspect to consider is the nature of OnlyFans pages. They are, by design, closed pages, requiring viewers to be subscribers. This raises significant questions about how the existence of an employee's account came to the employer's attention and, most importantly, how it may harm the business other than being a moral judgment. In many cases, the question boils down to whether the employer's business is genuinely affected and whether the employer had in place the necessary rules and obligations on its employees.
Moralistic Principles and Legal Grounds
Institutions with strong moralistic principles, in particular religious organisations, may have a lawful basis for taking issue with an employee's OnlyFans account. These institutions may even consider this as grounds for termination of employment.
The Annie Knight Case
The case of Newcastle woman Annie Knight illustrates some of the challenges employers may face.
Ms Knight was reportedly dismissed 5 days into a new job, after her employer discovered her OnlyFans page, which involved explicit images and inappropriate language, apparently breaching company policies and her employment terms. The reasons for dismissal also included that she was operating another business without notifying her employer.
Ms Knight has stated that while she was ‘angry’ and ‘upset’ at her dismissal, she did not mount any legal challenges. Instead Ms Knight has gone on to use the media exposure associated with her dismissal and revelations about her OnlyFans page to elevate her profile, and consequentially her earnings have also taken off (figures of AUD$1.8M per year have been mentioned).
This case highlights the potential risks and complications associated with an employee's side hustle.
Fair Work Commission's Guidelines
Recent and historical decisions from the Fair Work Commission provide guidance for "professional" occupations, including accountants, lawyers, doctors, psychologists, and teachers.
Employers must carefully consider the reasons behind their concerns when discovering an employee's risqué (or other) side hustle.
One thing is for sure, the Fair Work Commission will expect an employer to have made its standards and other workplace rules very clear at the time of employment, through its policies and through its own day to day practices.
Mitigating Risks and Legal Complications
To manage the risks of employees’ side hustles, employers should have:
Clearly drafted contractual requirements around secondary employment and out of hours conduct; and
Clearly drafted policies to properly inform and direct employees about what is appropriate and what is not, how this relates to your business and the basis for the company’s position.
(1) While Ms Knight did not legally challenge her dismissal (possibly due in part to it being during her probation period, but more likely the AUD$1.8M of income she now makes), knee jerk sackings, such as Ms Knight’s could expose your business to legal liability.
(2) The issue of employees with a ‘side hustle’ (not just OnlyFans accounts) does give rise to the risk of complex legal and ethical questions for employers, some of which can attract liability if not given careful consideration before implementation.
(3) Navigating this modern dilemma requires a thoughtful and measured approach. By strengthening contract and policy provisions and considering the potential harm to the business, HR managers and other managers can protect their interests and maintain a fair and balanced approach to employment management in an evolving digital world.
(4) Remember that transparency, clarity, and respect are key in managing these modern workplace challenges.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.