At a time when approximately 70% of Canadians, and half of the world’s population, have a smartphone, never in the history of human civilization have so many people had the capacity to spread their ideas, and words, so freely.
We also happen to be living at a time of intense political tension, and when individuals can broadcast their political opinions to anyone willing to listen. But what happens when an individual’s political expressions are detrimental to their employer’s interests? Many employees have recently learned that it could cost them their jobs.
The “right” to free speech
When people speak of their “right” to free speech, it is fundamentally a reference to their right to express themselves without government interference, as enshrined in the Canadian Charter of Rights and Freedoms (the “Charter”). This is a core tenet of a free and democratic society, which applies to government action. But there are limits to this right, such as speech which incites hatred, or speech which is false and damaging (i.e. defamation). In those situations, there can be criminal and/or civil consequences. This type of speech is clearly prohibited in any workplace.
Short of clearly hateful, sexist and/or racist speech, what rights do employees have to generally express their political opinions?
The reality is that the Charter does not apply to most workplaces, as they are mostly private businesses. The type of speech which is acceptable in the workplace will be highly contextual and dependent upon the nature of the employment relationship, which is governed by an amalgam of workplace legislation, the common law and contracts.
The employment relationship
Subject to workplace legislation, an employee’s rights are limited to whatever they have agreed to with their employer. This can be evidenced in a written agreement (i.e. an employment contract), oral representations, a course of conduct, or a combination thereof.
Written contracts, and the associated policies which may be incorporated by reference, can outline how employees are expected to conduct themselves. While these policies generally cover the standard fare of harassment, sexual harassment and confidentiality, there is nothing preventing an employer and employee from agreeing that an employee will not make any public political statements in their capacity as employees, without prior approval of their employer. This is already the case for positions which expect non-partisanship, such as judges and employees of the federal public service.
An individual who identifies themselves as a company employee on their Twitter account, and then, for example, tweets their approval of Donald Trump, would be in breach of such a policy.
One of the challenges with such a policy in the private sector, however, is that employers will inevitably find themselves policing certain political statements and not others. Indeed, making political statements has suddenly become a core branding, marketing and human resources strategy of many organizations, while those who fail to do so risk losing a competitive edge.
The NBA, albeit governed by a collective agreement, provides an early glimpse of what regulating political speech may look like. The players have been recently wearing uniforms with pre-approved political messages such as “Education Reform” and are not permitted to craft their own messages. Fans critical of the NBA have pointed out the curated nature of the messages, noting the NBA’s absence of any political position with respect to China, where it has large economic interests.
Facebook has also been known to allow employees to “free-write” political thoughts and statements on company walls, and to issue company wide memos decreeing which statements are acceptable, and which are not.
Employers considering any such policy must therefore carefully consider a variety of legal, practical and economic factors.
Absent such policies, employers who wish to regulate political speech may also do so with reference to the common law and human rights legislation. Political speech, which is not expressly discriminatory, can nevertheless be vulnerable to such interpretation, as academics at several Canadian universities have recently learned. As employers have a responsibility to ensure a workplace free of harassment, and to prevent discriminatory treatment through a poisoned workplace, they can regulate the ostensibly offending speech on those grounds.
Where is the workplace?
Prior to COVID-19, work was increasingly encroaching on the personal lives of employees, and with remote working arrangements becoming even more pervasive, it is now truer than ever.
If employers are regulating political speech, they will need to consider where they are regulating it – both, physically, and online. Where the impugned behaviour takes place “outside” of the workplace, or on a personal social media account, courts have ruled that termination for such behaviour may only be warranted where it harms the employer’s reputation and interests, or is egregious enough that continued employment is not reasonable. It is important to note that these decisions are in the context of whether the employer has “cause” to terminate the employee. Political speech that is not clearly inflammatory may fail to reach that threshold, but this does not mean that an employer must continue to employ someone who is hurting their business on account of their political expressions.
Ultimately, employees do not have any inherent right to make political statements at work, or in their capacity as employees. Even if the offending statements do not rise to the level of “cause”, employees can find themselves unemployed if those statements hurt a company’s bottom line. Of course, not all political speech is created equally. An employer who fired an employee as a result of, for example, supporting Black Lives Matter, could quickly find themselves in a lawsuit and in the middle of a PR nightmare.
These are complex issues which companies would be wise to navigate with experienced employment counsel. The lawyers at Hyde HR Law are routinely called on to advise on these issues and all aspects of human resources strategy. Contact us today for expert advice and assistance.