Keep Your Opinions to Yourself! Determining the limits of employee free speech inside and outside the workplace

The COVID-19 pandemic has exposed stark divisions within the workplace and outside of it, as two years of pent-up frustration have driven employees and others into polarized camps on an array of highly charged issues: public health restrictions, vaccination, the Freedom Convoy, and others. Add to this the lingering effects of “cancel culture” and the #MeToo movement, and debates have the potential to spill out into the open, not only on social media, but also directly, in confrontations among employees and between employees and managers. Unions have also found themselves having to take sides, potentially undercutting bargaining unit solidarity and creating challenges for their role as representatives. In this context, what are the limits of employee free speech, both inside and outside of the workplace? Which types of conversations are acceptable, and which should be prohibited? Leading experts will address these questions and more, including the following:

• Where is the line to be drawn between safeguarding employee free speech and ensuring a work environment free from harassment and unacceptable comments and communications? Do employees have the right to express their views on potentially controversial or political subjects at work?
• Should political discussions be banned at work? If so, what constitutes a political discussion? For example, are discussions about climate change or ethnic diversity political?
• Are employees free to criticize their employers or employer policies — either at work or outside of it? Do whistleblowing protections apply to employees criticizing employer actions or policies that are legal but politically unpopular or socially unacceptable?
• Are employers able to discipline employees for private, off-duty statements that come to their attention? How close of a connection is required between an employee’s off-duty conduct and an employer’s legitimate interests in order to establish just cause for discipline?
• Given public reactions to individuals expressing controversial views, is it now easier than ever to justify the discipline or discharge of an employee who expresses unpopular views off duty? What if the employee’s conduct raises questions about their behaviour in the workplace?
• How, if at all, should Charter rights or values, such as respect for freedom of expression, influence arbitrators’ analysis of discipline imposed on employees because of off-duty statements?
• What is the extent of a union’s duty to represent members who face work-related consequences because of their unpopular beliefs or opinions? For example, what happens if an employee is fired due to personal disagreement with an employer’s vaccine mandate? What about in the case of an employee dismissed for off-duty comments commonly viewed as sexist, racist, or homophobic?