Can I Get Fired For Protesting?

With the polarizing protests of the last several days, and some reports of transport companies who have fired truckers who participated in the convoy, it seems a good time to talk about what your employer can do if photos of you show up on social media waving a Confederate flag: Specifically, can you be fired if your employer doesn't like what it sees you doing?

Not-For-Cause Termination

Let's start with the basics: In most non-union contexts, an employee can be dismissed for almost any reason (or no reason at all), though there's usually a requirement for some amount of 'notice' - typically meaning that your employer might dismiss you immediately but you then have a claim to some amount of money. (The amount can be significant, or not, depending on a number of circumstances.)

There are a few improper reasons to dismiss, as established by statute. For example, it's generally illegal to dismiss someone - on notice or otherwise - because they became pregnant.

But in most jurisdictions (BC is an exception), political belief does not engage such a protection. Even where the political belief is tied to protected grounds (say, someone with Palestinian roots protesting against Israeli settlements), there are cases saying that this doesn't get protection.

In other words, for most employees, if your employer wants to get rid of you because you attended a protest...they can.

(There are exceptions, including some classes of truck driver.)

For Cause Termination

There are some circumstances where an employer can argue that an employee's conduct, even outside the workplace, reflects so poorly on the employer that it has just cause to end the relationship.

It's fairly rare. It can happen with employees who are known to represent a company - for instance, a public spokesperson, senior manager, etc. - who engage in conduct that embarrasses the employer. It can happen if there's a close enough connection between the misconduct and the nature of the work. (For instance, a pilot who flew for a small northern airline was once discharged because of anti-Indigenous social media posts.) Or it can happen if the public misconduct happens with the employer's logo on display - for example, wearing the employer's uniform or operating the employer's vehicle.

One of the reports I've seen involves a transport company cutting ties with a truck driver who brought his truck to Ottawa with the company logo...and also a flag from a designated terrorist organization. (That driver appears to have been an owner-operator, not an employee, so the analysis is different, but if it were an employment relationship, a pretty decent just cause argument would follow.) In another recent case in BC, a truck driver made contact with a counter-protester on a bicycle.

In general, if you're going to make a personal political statement, it's a good idea to separate that from your employer. If you stand up on a podium in the employer's uniform, then the employer has a legitimate concern over how you've represented the employer's brand, which might lead to discipline or discharge. The severity will depend on a bunch of factors, including how closely your employer is tied to your statements; whether the statements are inconsistent with the employer's brand or otherwise harm the employer directly; whether your conduct is generally lawful; etc.

One issue that sometimes arises is demonstrated disregard for standards that are important to your employer. So if you work for a safety-conscious company and post a video of yourself stapling your private parts to a wooden plank, in a context where your employer is easily identifiable, your employer might take that as sending the wrong message to its customers and partners.

Also...it should go without saying, but unfortunately it doesn't: If you've misrepresented the reason for your absence to your employer, and show up on video protesting in Ottawa, that misrepresentation can have consequences. If you're taking vacation time, then sure, it's your time. But if you're calling in sick (and especially if it's paid sick time), then the employer might take issue with that.

FAQs From Protesting Employees

Q. Why does my employer care what I say?

A. There are a bunch of legitimate reasons for an employer to be interested in the way you express yourself publicly. First is the possible perception that you speak for your employer. If people might reasonably associate your view with the employer because you said it, then that creates a strong and compelling employer interest. Second is the possibility of repercussions of being seen to employ someone who has made public statements that are regarded by the business' customers and partners as problematic. Relatedly, employers are entitled to try to cultivate workplace cultures that might be hard to reconcile with certain public statements. Finally, though harder to build cause out of, an employer (in many contexts) might fire you for a view just because it doesn't like your opinion.

Q. Don't I have freedom of speech?

A. Not the way you think. You have freedom from government interference in speech. That doesn't mean that you're entitled to spout off without any consequence. Your constitutional freedom of expression isn't offended when your private sector employer says "We don't want people with those beliefs here." When we get into professional regulators limiting speech, that does engage constitutional concerns, but the right isn't absolute. 

Q. What if I make clear that I'm not representing my employer?

A. That can help, but it's not necessarily a cure. If it's something innocuous like expressing your political opinion despite your employer wanting to be politically neutral, clarifying that it's just your view can make it less severe. (Still, cover up the employer's logo on your outfit.) But concern that you're speaking 'for' your employer isn't the only issue here - not to mention that not-for-cause dismissals will often be available just on the basis that your employer doesn't like your opinion.

Q. What if my employer doesn't have a policy?

A. An employer policy on these issues is strongly recommended, but isn't necessary at all for a not-for-cause dismissal, and isn't always required for just cause, either. There are some kinds of things that are so obviously problematic that the employer doesn't need to make it express. And employees generally owe duties of loyalty and fidelity, which means that doing something that you know will hurt your employer...can be problematic in terms of wanting to continue the relationship afterward.

Q. What if I conceal my (and my employer's) identity?

A. This is more common on the internet, compared to in-person protests, but with the proliferation of masks it's entirely coherent to imagine somebody making a public statement where their identity isn't immediately apparent. Anonymity, however, is of finite value: Obviously, if nobody figures out that you're the one spouting off white supremacist rhetoric at a rally, you won't face consequences for it...but if someone DOES connect you (and your employer) to it, then the fact that you'd covered your face won't much change the employer's analysis in terms of whether it wants to keep you in the workplace.

Q. What if I'm blowing the whistle on bad conduct by my employer?

A. In the public sector, there are certain protections for whistleblowers, but those protections - particularly in Alberta - can be narrow in terms of how a whistle gets blown. Whistleblower rights don't necessarily extend to protection for spilling your public sector employers darkest secrets with a megaphone outside the Legislature. Similarly, there are limits in terms of the nature of misconduct that engages whistleblower protection.

In the private sector, however, there are no such protections to speak of. (Reporting your employer to the Ministry of Labour, for problematic behaviour under certain employment statutes, often engages reprisal protections, but...it's not the same.)

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Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.