In the US, many employers can fire people for almost any reason. That's not the case in Canada. But that doesn't mean you can't face consequences for what you say in the office or on the internet. Charlie Herrera Vacuor, an employment law and HR senior consultant at Peninsula Canada explains.

Charlie, welcome to the program. Uh let's talk political speech in the workplace. How is it protected compared to race, gender, religion?

That's a great question and something that we constantly clarify to our clients at Peninsula. Uh political speech is not specifically protected in all Canadian jurisdictions. For instance, the federal human rights legislation and Ontario's do not protect specifically political speech. However, many other provinces do.

Now, what does this mean? Uh can I specifically and blatantly ban political speech from the workplace? No. Uh what as an employer you can do is set specific guidelines of what is respectful political speech in the workplace and which instances will be considered possibly uh you know something that is not respectful. I think what we see of late is a lot of people uh seeing the consequences of something that they have said and what we see is them being terminated from their job or fired. On what grounds could an employer terminate someone for political speech?

So at at Peninsula what we say to uh our clients is that no termination is risk-free and therefore uh these kind of decisions should be well thought. Um as I mentioned political speech is protected and in some jurisdictions as a human rights uh protected characteristic and therefore depending on the circumstances uh a termination could lead to a discrimination claim. Therefore it is important that uh we always establish specific guidelines of what is accepted political speech, what is respectful to other employees in how to have these kind of you know conversations. so that everyone operates uh with uh knowledge and understanding of what is the um expected conduct.

Termination if we look at a spectrum is on one end. There are other things that could be done other actions that employers can do. What what else could they be looking at at at the get-go? What we advise our clients is to have specific policies in place. These specific policies will usually determine what is the expected conduct and under which circumstances could discipline uh follow. Of course uh as legislation and case law um you know usually uh tells employers uh how to operate is to always follow what is called a progressive discipline approach.

So of course termination never being the first instance unless circumstances merit. So, um, usually you want to follow first a verbal warning, then a written warning, a final or second written warning, and then possibly a termination.

Okay. I want to talk about um sort of, you know, a lot of people work from home, but also the the sort of the influence of technology. You know, a lot of people after if they're working a 9 to5 after 5:00, they're they're living their lives. And I I want to make a distinction or is there a distinction between um someone who is you know using social media talking about something that could be controversial uh at home online versus in the office. Yeah, that's that's a great question and you know something that has come up a lot lately given uh everything that has happened around certain political figures expressions and and you know um so there's two approaches.

The first approach is um having as I mentioned before a workplace policy that uh tells employees what is the best practice conduct for their workplace. The second one is uh always to have a transparent and constant communication with your employees about what what how to go over specific situations. So in this year it's been it's been a hard year for Canadians because we had plenty of elections. We are coming out or we're going through you know um turmoil of a relationship with our closest neighbor. Uh and you know folks have the you know in they want to say something have a lot to say.

Yeah. Exactly. Um I mean we're people we're you know uh and and so in that regard um it's always important to for employers to say before you want to say something make sure if if you really have to if you really have to and if you really have to make sure that there are certain caveats or there are certain protections that are in place. Is your social media does your social media have uh your company affiliation? Is your like a specific name there? You know, those things. And and then of course, let's try to moderate the way that we express ourselves. you know um hateful uh speech you know can always bring problems not only for oneself but also if you know if you are having your company affiliation attached to that uh it could bring reputational problems for the company and that is where a a workplace policy best addresses that those kind of instances.

All right I want to talk uh about some real uh life examples. Uh we asked the market research firm Advanced Symbolics Inc. uh which uses artificial intelligence technology known as Poly to find out what topics uh people are afraid to talk about in the workplace. And the number one topic came up as Charlie Kirk, not Charlie U, but Charlie Kirk, which for people who don't know, a uh right-wing um commentator who was killed in Utah uh on campus uh last month.

And what they found was that any conversation around Charlie Kirk quickly escalated into heated arguments or accusations and there was a palpable sense that any comment could be misrepresented or weaponized by colleagues with opposing views. With this specific example, do people need to be afraid of what they say about him? You know that statement in itself is is very dangerous. Uh when people live with fear about uh what their thoughts are and their expressions, it seems like there are many things that have gone wrong before. Now we're trying to figure out how to address them.

Um what I've said before um in in part of the publications that we do is that uh both employees and employers uh have are going through a lot of changes and the velocity of these changes is like unprecedented pace. Legislation is being coming up. New things are happening. Uh you know there's tension growing and then people just react. And in this reaction is where you know the problems the tension comes and the fear ensues both for the employee and the employer. Uh in these situations uh I acknowledge that there is a lot of you know um tension and um just uncertainty about how to manage these situations. Um but I think the key one is empathy.

how how is my expression going to be received by the other person and if another person were to say something that I completely disagree with, how should I how will I receive that? Um, and I think that that is one of the key messages that all employers should be putting out there is, you know, have more empathy in the way that you express yourself because however you may be hurting other people, you may also be subject to that. And when when if we don't do that the problem is that situations will escalate and you know may that never happen that you know we have violence in the workplace.

One of the key things that we tell all our employers our our clients is that um they have an obligation to have a respectful work environment. That is an actual legal obligation. And so if employers cannot guarantee that you know employees can have uh a good resource to go against their businesses. So this also clarifies why employers are also feel very tense.

Can you give us a sense of what in this moment you describe the sort of the climate that we are in. Um what are you hearing and seeing from employers and employees about sort of those conversations right now? are is it turning? You know, I sometimes it feels like on social media what we see is sort of a witch hunt sometimes when someone says something um that may be deemed you know on one side of of the spectrum on the political speech spectrum um as controversial. It turns into a witch hunt to find their employer as a way to uh show them that they can't say that.

Um I am curious have you dealt with employers and employees who are having to navigate you know okay yes this was said but legally what are the ramifications so great question uh yes indeed many of our clients have reached out about this specific issue uh what we first see is that employers are definitely tense they are fearful because they see that their employees many of them have their affiliation in their social media so they are they are fearful they they're fearful that they're also their companies are going to be subject to the witch hunt. So there is a whole um context that just doesn't allow for there to be a moment of um you know u cooling off period. Everybody's reacting.

Uh what we do tell our employers and we prepare them for success is make sure that you have your policies in place that you have communicated and been transparent with your employees about how to handle these situations and that you know when we know for instance when we know that there is a conflict in the Middle East and that people will talk about this. We tell them, we preempt this by saying, "Please refrain from using hateful words. Refrain from using hateful expressions or expressions that you wouldn't like to be told to yourself." These kind of communications and transparency are the best way to just try to find a path forward. It's not going to be the end solution. Things will have to be tweaked. This is not something that, you know, uh, it's said once and never touched again.

Can I get some clarification as to what what would be deemed a hateful comment? Um, well, like as as you mentioned that with the assassination of Charlie Kirk, you know, I think that comments that try to contextualize something that our criminal code says that it's wrong to do is definitely something that um will create some hostility or may create some hostility whether he deserved to die or something like that. Mhm. Okay. So those kind of things I would say it's better better to you know have them somewhere else uh in a dinner conversation um at a pub or or or other in a context that is not in a place where you are going to have repeated iterations with the people that you have to work with.

Hm. I want to get a better understanding from the employee uh side of things. We talk about sort of the witch hunt. We talk about the pressure that employers, you know, have to put out a statement. Um if an employee is fired for posting something offensive about Charlie Kirk or uh Israel and Palestine, what recourse does the employee have to challenge their termination? Sometimes it it may seem that employers are um being quick because they have to respond in a in a we're in a time and age where if you don't see a response where someone has been fired from their job, then something is not being done. But on the employee side, is there something that they can do?

We're very careful at Peninsula to always tell our employers, your employee has rights, your employee has guarantees that you need to respect. Uh freedom of speech is specifically one of them. And in certain jurisdictions, as I mentioned before, political speech is specifically protected. So that means that operating through termination or um unreasonable disciplinary action can warrant you a human rights claim. Uh what we do tell our employ uh um our clients to communicate with their employees is um how to manage this in a situation that allows them to have the freedom but also makes them aware that their speech and the way that they uh voice it uh can be put under scrutiny.

It's very clear that there are blurred lines. Yes. uh this is we're talking this is a in sometimes it's very clear as to what is political speech and and what could be considered hateful but to what extent is speech in the eye of the beholder I want to give you an example you know the phrase from the river to the sea Palestine will be free might be offensive to some people but not to others how do employers navigate the nuance of that

so everybody is entitled to uh a specific view on a specific tension, right? Um, and when we're talking about war that uh will always have gray areas, the specific way is uh to ensure that the workplace as a whole is able to move forward no matter how it's being said, no matter what is being said. because what can be offensive to somebody may not be offensive to others and vice versa. So the issue here uh is how can we move together in a way that you know people don't separate people don't create violence people don't create uh tension

um I always say that uh with the most clear-cut ways uh when we're talking about the LGBTQ plus community something like a pronoun means everything right for that community because it's talking about not not only their identity but the way that they express themselves. Uh, and having a comment about that may be like something in passing for many folks, but for that community it's everything and not being respectful and about that it's literally negating their existence. So expressions from the river to the sea may mean, you know, something totally uh rightful and champion for some, but for the other ones has to do with their existence as well.

Charlie, we're going to leave it there. Really appreciate it. Uh some good food for thought for employees and employers. Thank you for having me.