Canadian Employment Law Today - sample

Stirring the political pot Employees protesting and expressing political views involves a balance between freedom of expression and what's appropriate in the workplace BY LAURA WILLIAMS W hen NFL quarterback Colin Kaepernick began kneeling during the pre-game playing of the U.S. national anthem in 2016 to protest what he described as ra - cial injustice towards African Americans, his actions caused an immediate stir. But few could predict the eventual furor that would sweep across the league, pit the NFL in a Twitter war with U.S. President Donald Trump and prompt dozens of other players to follow Kaepernick's lead. Eventually, many NFL owners began cracking down on what they deemed to be disrespectful and unpatriotic behaviour — and a potential detriment to their careful- ly-crafted brand — just as players contin- ued to defy their entreaties to stand during the anthem. Because the field is the players' workplace, owners felt a right to police the actions of their players in that milieu. Most of us wouldn't necessarily consider a football field to be a place of work (maybe only a venue for highly-paid play?), but in- deed it is. And in a place of work the em- ployer can dictate acceptable behaviours, culture and performance expectations. erein lies the challenge for employees who seek to express their views or take a political or social stand in the workplace. Employers can, in any case, insist that those views be kept personal, subject to human rights legislation. Across Canada, each province has hu- man rights legislation that defines protect- ed grounds preventing discrimination in areas such as religion, race, creed and dis- ability, among many others — in Ontario, for example, the list of protected grounds totals 16. But it's only in the following juris- dictions that political beliefs are protected: • Newfoundland and Labrador (political opinion) • Nova Scotia (political belief, affiliation or activity) • New Brunswick (political belief or activity) • Prince Edward Island (political belief ) • Quebec (political convictions) • Manitoba (political belief, political asso- ciation or political activity) • British Columbia (political belief ) • Yukon (political belief, association, or ac- tivity) • Northwest Territories (political belief, political association). While employees' right to freedom of speech and expression are enshrined in the Charter of Rights and Freedoms, those protections only apply as it relates to gov- ernment action. Employers can set reasonable limitations Much like NFL owners prohibiting certain activity on the field of play, so, too, can em- ployers across Canada set reasonable ex- pectations and limitations around the ex- pression of viewpoints — however benign or controversial — by their employees. If, for example, an employee refused to carry about his basic employment duties to protest a political stance taken by his company or the potential social implica- tions of that company's business activities — or actively promoted political or social beliefs in the workplace that meant she was effectively taking on an activist stance — and if that conduct becomes offensive to the point that it constitutes harassment, her organization could be justified in tak- ing disciplinary action. In some cases, the conduct could constitute insubordination if the employee is willfully not meeting the expectations and responsibilities set out in her role. In addition, and depending on how vo- cal the protest or its nature, if those actions were to have a reputational impact on the employer — say, if the employee expressed her views on social media and those views could in some way be connected to the organization and have a detrimental ef- fect on its brand — that could be another cause for discipline, and potentially even termination. But that connection between the expression of the employee's views and the harm to the employer's brand or reputational interest must be reasonably demonstrated, even if only to argue the potential for harm. If the organization has suffered a measurable loss in the form of customer defections or lost revenue, then the case can possibly be made for dismissal for cause. Last July, a group of five Canadian ser- vicemen disrupted a Mi'kmaw ceremony and identified themselves as members of the controversial "Proud Boys" group. Shortly thereafter four of the five (one reportedly left the military for unrelated reasons) were placed on probation for violating a section of the military's code of conduct preventing service members from doing anything in public that could "reflect discredit on the Canadian forces or any of its members." Bear in mind that it's always far easier to terminate an employment relationship for cause if workplace policies exist that explicitly prohibit certain unacceptable behaviour — a point the Canadian mili- tary clearly understood and was able to leverage in this circumstance. Conduct expectation can be effectively set through a comprehensive code of conduct and social media and off-duty misconduct policy, as well as an explicit prohibition of specific activity — from physical contact to commentary — that might be consid- ered offensive by others. Any breach of these policies could be deemed miscon- duct warranting discipline. While hate speech and other language that is widely accepted as offensive can be considered a cause for discipline or ter- mination, employers should be careful to avoid stymying an individual`s views. Sim- ply espousing a political or social opinion EMPLOYERS often have certain standards of conduct they expect employees to follow. But in today's often divisive political climate, more and more people are voicing their views when they don't agree with something — the national anthem protests by professional football players in the U.S. are an example. How should employers handle situations where employees express their political views and values when it may or may not be appropriate? HR lawyer Laura Williams examines this hot-button issue and how it relates to workplaces away from the football field. 4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: DISCIPLINE BACKGROUND A connection between the employee's public views and harm to the employer's brand or reputation must be reasonably demonstrated.

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