Free to express yourself online while off-duty? Tracing jurisdictional expressions of shifting workplace boundaries in Canada

ABSTRACT

The myriad opportunities social media provide for amplifying individual expression are counterbalanced by the countless opportunities they afford employers to monitor and regulate employees’ off-duty speech. The embedding of social media platforms into peoples’ daily routines has blurred the boundaries between work and non-work domains. This presents a host of ethical, legal, and moral challenges pitting the rights and interests of employees against the authority and power of employers. In seeking to investigate whether, and the extent to which, employees’ off-duty expression is becoming subject to increasing employer control we conducted a systematic content analysis of Canadian judicial opinions from some 50 arbitration and court decisions involving the porous boundary between employees’ off-duty and work lives. The findings offer insights into the governance trajectory being charted by jurisdictional expressions in Canada that deal with reconciling employees’ right to freedom of expression with their contractual obligation to avoid harming employers’ public reputation. The analysis shows that employers are seeking to impose strong disciplinary measures for employee off-duty social media postings they deem contrary to their interests, and that adjudicators are upholding the imposing of such discipline while mitigating employer disciplinary excesses. These observations suggest the classic dichotomy between owners’ time and own time is being reconfigured into a distinction between owners’ time/space and one’s own tethered time/space. The recent introduction of ‘right to disconnect’ legislation offers labour unions a unique opportunity to develop collective bargaining proposals aimed at eliminating the tethering of employees’ time/space and better protecting their off-duty expression.

KEYWORDS:

• Freedom of expression
• judicial decisions
• social media
• off-duty
• workplaces

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The Canadian Press (November 10, 2019). Don Cherry sparks online backlash for comments on immigrants, Remembrance Day. https://www.cbc.ca/sports/hockey/nhl/don-cherry-sparks-online-backlash-1.5354835.

2 In Canadian employment law, being dismissed for cause refers to an employer terminating employment without providing any notice or pay in lieu of notice on the grounds that an employee has fundamentally breached their employment contract and undermined their employment relationship.

3 In 2021, some 31% of the Canadian workforce were members of a union and/or covered by a collective agreement. See, Statistics Canada (2022a).

4 See, Freedom of Expression @Work, https://cfe.ryerson.ca/key-resources/databases/freedom-expression-work.

5 See, https://cfe.ryerson.ca. We thank James L. Turk, Director, and Ange Holmes, Co-ordinator, for their continued support of our project.

6 It merits noting that for teachers this boundary is very porous insofar as they can be disciplined for off-duty activity if their conduct is deemed to impair either public confidence in the education system and/or their ability to perform their professional duties. See, MacKenzie (2016); Ross v. New Brunswick School District No. 15 (1996) 1 S.C.R. 825.

7 Maier (2013) advocates for a review and refinement of employment law principles in the light of communicative changes effected by social media tools on the grounds that social media-based communications are qualitatively different from older modes of communication and because whereas ‘the traditional employment law framework has often focused on the consequences that may befall an employer’s reputation’ within unionized workplaces ‘the approach by labour arbitrators allows for an examination of more types of harm, including the harm suffered by other parties in the workplace relationship’ (p. 282).

8 The seminal case on this matter is William Scott & Company Ltd v Canadian Food and Allied Workers Union, Local P-162, 1977.

Additional information

Funding

This work was supported by an Insight Development Grant from the Social Sciences and Humanities Research Council, Canada [grant number 430-2018-00880].

Notes on contributors

Daniel J. Paré

Daniel J. Paré is an Associate Professor in the Department of Communication, University of Ottawa, and is cross appointed with the university’s School of Information Studies (ÉSIS) and Institute for Science, Society and Policy (ISSP). His research focuses on governance and policy challenges arising from innovations in information and communication technologies [email: [email protected]].

Charles Smith

Charles Smith is an Associate Professor in the Department of Political Studies, St. Thomas Moore College, University of Saskatchewan. His research focuses on the history of labour relations and the politics of organized labour [email: [email protected]].