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Carnival of HR: Freedom of Speech Doesn’t Mean Freedom from Consequences

Career Innovations is proud to host this week's Carnival of HR.  Carnival of HR is dedicated to bringing together the best posts from the HR blogging community! This post was submitted by Stuart E. Rudner.  Stuart is a founding partner of Rudner MacDonald LLP, a new boutique law firm specializing in Canadian Employment Law. Stuart provides senior counsel in all aspects of the employment relationship including policies and procedures, hiring, employment agreements, human rights issues, reducing labour costs, restrictive covenants, discipline and termination.


no-freedom of speechIn my latest Canadian HR Law Blog post, I discussed my presentation at the recent IHRIM Conference in Anaheim, in which we discussed Social Media in the Workplace.

In the course of our discussion, one of the attendees raised a question about freedom of speech. Since we were in the United States, and the majority of members of IHRIM are American, his reference was to the First Amendment, but I explained that Canada’s Charter of Rights and Freedoms provides for freedom of speech as well. The question related to how this relates to the idea an employee could be disciplined or dismissed for what they say, particularly when this occurs away from work. In other words, if we have a charter that guarantees freedom of speech, how can someone’s speech be used to justify firing them?

As social media has become more prevalent, and discipline for employees’ online conduct has become more common, this is an issue that has arisen many times. In most cases, you will often hear the somewhat naive declaration that we have freedom of speech, and therefore what somebody says online, on their own time, shall not be used against him. This is, unfortunately for individuals, completely inaccurate.

Our charter guarantees freedom of speech, though even that is limited in certain circumstances. This guarantee means that, with certain exceptions, an individual will not be subject to criminal prosecution or conviction as a result of what they say. Of course, it has been limited by hate laws and other legislation. However, even accepting the general principle that what you say cannot be used against you, this does not apply to every context. Rather, it protects individuals from criminal prosecution. It does not mean you cannot lose your job, or be suspended from school, or suffer any adverse consequences.

As a general rule, what you do on your own time is none of your employer’s business. However, discipline will be warranted where your conduct, including online comments, has a negative impact on the employer or the employment relationship. For example, posting something that will impact the reputation of your employer, or making inappropriate or harassing statements about your colleague, or insulting your supervisor, can all be used in order to justify discipline, including, potentially, dismissal.

Employees should be aware of this, and should also realize that freedom of speech does not mean freedom from consequences. As a result, you should think long and hard before posting anything that may be seen by your employer as having a negative impact upon them or the employment relationship. Otherwise, you may find yourself out of a job.

Stuart E. Rudner Full Profile

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A blogging carnival is a social media meme in which a group of bloggers submit blog posts to a “host” who compiles the posts into one collection that they then publish on their site on the prearranged day. The posts and bloggers are generally focused on an similar area of interest, such as Human Resources, and may or may not have a theme which unites the posts on a specific question or topic. Carnivals occur on a regular schedule, monthly/biweekly/weekly, and the carnival hosts change after each event. You can find more information about blog carnivals here.


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