Free to express yourself online while off-duty? Tracing jurisdictional expressions of shifting workplace boundaries in Canada

Abstract

ABSTRACT The myriad opportunities social media provide for amplifying individual expression are counterbalanced by the countless opportunities they afford employers to monitor and regulate employees’ off-duty speech. The embedding of social media platforms into peoples’ daily routines has blurred the boundaries between work and non-work domains. This presents a host of ethical, legal, and moral challenges pitting the rights and interests of employees against the authority and power of employers. In seeking to investigate whether, and the extent to which, employees’ off-duty expression is becoming subject to increasing employer control we conducted a systematic content analysis of Canadian judicial opinions from some 50 arbitration and court decisions involving the porous boundary between employees’ off-duty and work lives. The findings offer insights into the governance trajectory being charted by jurisdictional expressions in Canada that deal with reconciling employees’ right to freedom of expression with their contractual obligation to avoid harming employers’ public reputation. The analysis shows that employers are seeking to impose strong disciplinary measures for employee off-duty social media postings they deem contrary to their interests, and that adjudicators are upholding the imposing of such discipline while mitigating employer disciplinary excesses. These observations suggest the classic dichotomy between owners’ time and own time is being reconfigured into a distinction between owners’ time/space and one’s own tethered time/space. The recent introduction of ‘right to disconnect’ legislation offers labour unions a unique opportunity to develop collective bargaining proposals aimed at eliminating the tethering of employees’ time/space and better protecting their off-duty expression.