Can Employers in BC Restrict What Employees Say Online?

The question of whether employers in British Columbia can restrict what employees say online and outside of work raises important legal and ethical considerations. With the growing presence of social media, the tension between employees’ rights to free expression and employers’ interest in maintaining workplace integrity has intensified. Recent developments, including the recent Northern Health case, have brought these issues into sharper focus.

Employees’ Right to Freedom of Expression

Under Section 2(b) of the Canadian Charter of Rights and Freedoms, all Canadians have the right to “freedom of thought, belief, opinion and expression….” However, this protection primarily applies to government action and does not necessarily extend to private employers. In the context of employment law, what employees say online or elsewhere can still be subject to limitations and scrutiny, depending on each employee’s employment contract and the employer’s policies. So, the short answer is it depends!

Employer Restrictions and Legal Considerations

In British Columbia, employers have some latitude in restricting or disciplining employees for online behaviour that reflects negatively on the workplace. Employers often cite concerns such as:

Reputational Harm: Employees’ statements deemed potentially harmful to an employer’s reputation or business interests may lead to disciplinary action.
Disruption of Workplace Harmony: Controversial online comments and conduct may create conflicts, impacting workplace relationships and conflicting with an employer’s duty to prevent workplace discrimination and harassment.
Violation of Policies: Employers may implement codes of conduct or social media policies that restrict certain types of public expression.

However, restrictions must be reasonable and carefully balanced against employees’ rights to privacy and freedom of expression, particularly when speech occurs outside the workplace and on personal time. In such cases, courts often consider:

The Nature of the Speech: Is it political or purely personal? Political speech is generally afforded greater protection.
Impact on the Employer: Does the speech cause actual harm to the employer’s reputation or workplace functioning?
Relevance to Employment: Is there a direct connection between the speech and the employee’s role?

The Northern Health Case: Political Speech Under Scrutiny

The recent Northern Health case provides a real-world example of these legal complexities. In this case, a British Columbia healthcare employee made public pro-Palestinian statements on their personal social media account. According to CBC News, the employee faced complaints alleging the posts were inappropriate given the sensitive political context and the employee’s role (former director of inclusion, diversity and equity) within the organization.

Northern Health initially responded by removing the employee from their leadership position, claiming concerns about public perception and workplace neutrality. In a follow-up report, CBC highlighted the debate surrounding the employer’s ability to discipline employees for expressing political views outside of work.

The case culminated in Northern Health denying claims of wrongful demotion, as reported by The Tyee. Northern Health maintained that the disciplinary action was not due to the employee’s political stance but rather to concerns about perceived impartiality in their leadership role.

Key Legal Takeaways

Freedom of Political Speech Is Not Absolute: While employees in BC can generally express political opinions online, this freedom is not unlimited. Employers can restrict such speech if it:
- Breaches workplace policies;
- Causes reputational damage; or
- Directly impacts the employee’s ability to perform their role.
Public-Facing Roles Require Caution: Employees in leadership positions or public-facing roles are often held to higher standards. Political speech that undermines the perceived impartiality of an organization, especially in sectors like healthcare, can be more scrutinized.
Disciplinary Action Must Be Justifiable: Employers must show a legitimate business interest when restricting speech or imposing disciplinary measures. Arbitrary or overly broad restrictions may be challenged legally or through arbitration.

Striking a Balance

The Northern Health case highlights the need to carefully balance employee rights and employer interests. To mitigate similar situations from arising, employers should:

Develop clear and reasonable social media policies that align with legal standards;
Educate employees on the limits of public expression that may impact their role or workplace;
Avoid punitive measures unless a clear, demonstrable harm to the organization exists.
Consult an employment law specialist when constructing policies surrounding employee conduct and whenever a potential issue arises.

It’s easy for anyone to slip up, and it’s typically not enough to rely on employees to remember everything outlined in the contracts they signed when the company hired them. For this reason, employers would be wise to ensure their policies surrounding employee conduct inside and outside the workplace are reviewed regularly and easily accessible to employees.

Content Posted Online Has Permanence

Employees, in turn, should exercise caution when expressing potentially inflammatory views online, particularly if their role involves leadership or public trust. It helps to remember that content posted online has permanence, which can be weighed against an individual’s current and future employment interests. Transparency, thoughtfulness, and adherence to workplace policies can help mitigate conflicts.

To Summarize

While employees in British Columbia have a general right to online expression, employers retain the ability to impose reasonable restrictions when what employees say online harms workplace integrity, violates policies or impacts reputational interests. The Northern Health case serves as a reminder of the fine line between free speech and professional responsibilities, particularly for employees in sensitive or public-facing roles. Employers must tread carefully to ensure disciplinary actions are justifiable and balanced, respecting both workplace needs and employees’ rights.

If You Have Questions, We Can Help

If you’re an employer in British Columbia and have questions about your company’s social media policies or other business laws and obligations, our Employment Law Specialists at Spraggs Law are here to help. Please don’t hesitate to contact us at 604 359 1618 or online today.

Please note: This article does not contain legal advice. If you would like advice on your specific situation, please contact Spraggs Law.