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Blog September 18, 2019

Free to express yourself outside of work? Workplace discipline in the age of social media

Barely a day goes by without reading a new story about employees being punished, fined, fired or shamed for engaging in online conversations about the workplace. Social media is radically transforming the relationship between employees and their employers in a host of ways not the least of which is its capacity to simultaneously augment peoples’ ability to express their voice and employers’ ability to monitor and discipline employees. 

Over the next several days the Saskatchewan Court of Appeal will hear the complaint of Carolyn Strom, a registered nurse who voiced concerns on her Facebook page about the quality of care her grandfather received in a provincial hospital. Her ‘off-duty’ posts resulted in the Saskatchewan Registered Nurses’ Association taking disciplinary action against Strom for ‘professional misconduct’, and imposing of a $26,000 penalty. Strom’s plight has garnered much public support not least because in calling to account important weaknesses in the province’s health care system her comments are seen by many as providing an essential public service.  

Strom’s case is hardly the first instance of employees being punished for making public comments about their workplace. Our research has uncovered dozens of cases where employee’ online speech has caused disruptions in the workplace and led to their being disciplined, fined, and/or fired. To be sure, employees are not always saints, and many of the dismissals we’ve identified are based on egregious comments ranging from sexist, racist, homophobic and other derogatory remarks. In almost all these instances,  the speech in question truly reflects an atrocious lack of judgment that cannot be defended given the harm caused to others. There simply is no question the people involved poisoned the work environment and/or brought their employer’s reputation into disrepute. 

This said, in every case we have examined up to now the disciplinary measures have been constructed in accordance with how the speech reflects on employers and/or professional associations. The resources contained in our newly released database of workplace arbitration and court decisions dealing with disciplinary actions resulting from online speech show that, when it comes to employees,’ their online behaviour is having direct influence on workplace relationships. More concretely, decisions highlighted in our database demonstrate that the property rights of the employer or, in the case of Strom, larger professional bodies, is the principal issue guiding the types, and degrees, of penalties to which employees are subjected for expressing their voice. 

In an age when social media platforms are embedded into peoples’ daily routines and the boundaries between public and private spheres are blurred, the power yielded by rights of property takes on a more direct and culturally significant role precisely because workplace discipline extends far beyond one’s place of employment. Such realities raise countless public policy questions about the best ways foremployees, unions, employers, and governments to balance competing needs of security and privacy in an increasingly ‘open’ society. In terms of labour relations, the myriad opportunities social media provide for amplifying individual expression, some of which may clearly be damaging to employers, presents a host of ethical, legal, and moral challenges pitting employee rights against the authority and power of employers. Put simply, the relationship between employees’ experiences at work and their ability to publicly express their voice without fear of reprisal constitutes an important public policy and human rights issue. It also highlights the need for developing governance mechanisms to ensure an effective balance is struck between the interests of employees and those of employers. 

At the centre of our work is the following question: How are the discursive and dissemination opportunities afforded by social media platforms altering the balance between citizens’ public rights to freedom expression and their private contractual obligations as employees

We want to understand the extent and manner in which legal doctrine protecting the freedom of expression and personal privacy of employees is being transformed by the contending opportunities social media afford. We hope to contribute to intellectual, socio-cultural and economic research in the social sciences and humanities as well as to provincial and federal policy making contributions relevant for employees, unions, legal actors, policy makers, as well as domestic and international industrial relations organizations. 

The power of employers to control the lives and speech of their workers is being amplified in the current era. The opportunities social media provide for expressing ourselves are offset by the abilities it gives to employers to monitor and control employees’ speech. And, this monitoring often occurs even before people are hired for a position. It is our hope that our research will offer new insights into how society can protect employees’ freeedom of expression rights so they can be free to question power structures in the workplace and society, including the power used to surveille and control their freedom of expression.