October 30, 2013

There is often a tension between the free speech rights of employees and the interests employers have in controlling their public image and protecting their reputation. This tension is especially strong in the public service where employees and unions may seek to make public comments about a wide range of government policies and can invoke Charter protection for their comments. However, employees in the private sector have also found their online communications increasingly subject to the watchful eye of employers, but they often have little or no legal protection for their comments. In this session experts will attempt to identify the scope of protection for employee expression and legal strategies employers can implement to protect their legitimate interests.

    • Freedom of expression: What is the difference between the legal protections for public employees’ expression and the legal protections for private-sector employee expression? When can public employees invoke the Charter‘s protection of freedom of expression? How does the nature of the workplace affect the degree to which employees can express themselves publically? Will freedom of expression of employees be more limited where they work with vulnerable populations, such as young children?
    • Political expression by public employees: How far does the Charter right to free speech extend for public employees? How politically active can public servants be? Can public sector employees be publically critical of government policies? Can they be active members of political parties or advocacy groups? Can a government employer monitor an employee’s political activities or require reporting? What limitations can a government employer put on an employee’s political activities on the basis of “conflict of interest?”
    • Whistleblowing: Does the Charter‘s protection of freedom of expression have any bearing on whistleblowing in the public sector? What legislative protections exist in the federal and provincial sectors to protect employees who engage in whistleblowing against government employers? When can an employee make a disclosure directly to the public, as opposed to going to a designated officer in an organization or an integrity commissioner?
    • Political expression by private-sector employees: When will an employee’s political activities harm an employer’s professional reputation or effective functioning, providing cause for dismissal? Do Charter values play any role in determining whether an employee’s comments provide cause for discipline or discharge? Will employer limitations on employee political expression violate protections in certain provincial human rights legislation against discrimination based on political beliefs? Why don’t all provinces prohibit discrimination based on political belief?
    • Unions and freedom of expression: What legal protection is provided to employee expression related to organizing a union or to conducting union business? Does the employer have any legal right to know about or regulate what is said in union meetings or union communications with its members? Do unionized employees who are not union representatives have greater freedom to criticize their employers than non-unionized employees? Can union members publically criticize their employers?
    • Online expression: Is expression that takes place online “in the workplace” for purposes of human rights and anti-bullying legislation? Is expression on social media public? Can employees be disciplined for expressing critical views about their employer on Facebook, blogs and other internet sites? Does it matter whether the comments are merely critical, as opposed to obscene or profanity-laced? Does it matter if the employee does not use work time or work computers to make the internet postings or did not intend the comments to be seen by the employer? How does the U.S. approach to employee online communication regarding the workplace differ from the Canadian approach? Which approach is more consistent with Charter values?