Whistle While You Work? Drawing the line on whistleblowing, free speech, and other forms of workplace expression

In an era in which everyone carries a smartphone and freely shares views on social media, the chance of “going viral” is a real risk, as one Saskatchewan nurse discovered after receiving a $26,000 fine from her nursing regulator for criticizing her grandfather’s care in a Facebook post. When can employees be disciplined for their off-duty comments? Does it matter if the comments weren’t intended to become public? In what circumstances will workers receive protection as a whistleblower? In this session, seasoned advocates will review the latest developments on freedom of expression, addressing issues such as the following:

• Whistleblowing: What statutory protections exist for employees attempting to expose wrongdoing within their organizations? Have any provinces passed legislation aimed at protecting whistleblowers in the private sector? When, if ever, can an employee be disciplined or discharged for alleged whistleblowing activities? Are they required to exhaust internal mechanisms or procedures for redress before going public? Do they have to establish that their criticisms or concerns are true in order to receive protection?
• Public criticism of employer: In what circumstances can employees be disciplined for publicly criticizing their employer? Can they be disciplined for criticizing the employer to their co-workers? What about posting negative reviews on sites such as Glassdoor? Can employer policies or a duty of loyalty effectively limit employees’ right to freedom of expression? Do employees have any freedom to express criticism of their employers online during their off-duty hours?
• Social media/off-duty comments: How do adjudicators determine whether public statements made off duty and outside the workplace, including tweets, Facebook posts, or YouTube videos, harm an employer’s reputation or damage the employment relationship? Does it matter if the comments were intended to be private? Can employees be “saved” by disclaimers on their personal social media accounts indicating that the views expressed are their own and not those of their employer?
• Religious and political opinions: In what circumstances, if any, can the political activity of a public sector employee justify discharge or discipline? When can a worker be disciplined or dismissed for publicly expressing an unpopular political or religious opinion?
• Union communications: How far do the constitutional principles of freedom of expression and freedom of association extend in protecting communications by union members? Do employers have any right to know about or regulate what is said in union meetings or union communications with bargaining unit members?