Freedom of Speech at Work? Not Exactly
By Greg McGinnis
With the media covering the suspension of the manager of the Florida Marlins for his ill-advised praise of Fidel Castro, and employers asking for their employees’ Facebook passwords, the question of freedom of speech at work is once again in the news.
Canadians enjoy a constitutional right to freedom of expression. Does this mean that we have an unfettered right to say what we want at work, or about work?
No. There are countless examples of employees being disciplined or fired for saying things that are offensive to the employer or inappropriate in the workplace. Obvious examples would be the utterance of sexist or racist epithets, abusive language, or public criticism of the employer or its management (except when that criticism is protected by “whistleblower” laws, intended to allow employees to report illegal activities).
The situation involving the Florida Marlins manager takes it a step further – he has been punished for uttering sentiments that are offensive to the community, but not necessarily to anyone in the workplace or even the employer.
There are also examples of where employees have been removed or transferred for inability to speak the dominant language adequately.
Facebook and Twitter have opened up new avenues for personal expression, but employees are well advised to remember that “you are what you tweet” and even “you are what you retweet“. In an earlier article, we commented on a case that upheld the employer’s decision to terminate union organizers for offensive postings on Facebook.
On the whole, legal protections for “freedom of expression” in the workplace must be regarded as the exception rather than the rule, and much “offensive” and “inappropriate” speech will actually provide just cause for termination. The constitutional protections that we enjoy as Canadians apply to government actions against individuals, not between private non-governmental parties.
So the next time an employee claims “freedom of speech” for some insensitive or inappropriate remark, explain patiently to the benighted fool that the workplace is not a democracy.