The do’s and don’ts of election season

Legal, HR, social media considerations when employees start talking politics at work
By Liz Bernier
|Canadian HR Reporter|Last Updated: 09/24/2015

As an unusually tight election race nears voting day, it’s no surprise many of us have politics on the brain. But just how much politicking goes on in the workplace — and, more importantly, how much should go on?

It’s a somewhat tricky question simply because there’s isn’t a whole lot of legal guidance on the issue, said David Whitten, partner at Whitten Lublin in Toronto. 

In provinces without human rights code protections for political beliefs, employers can discriminate on the basis of politics — as long as it’s not linked to religion, he said. 

“Really, we’re looking at a wide open playground. An employer can post as many Liberal, Conservative posters as they want around the office; they can go around and try to collect money from people,” he said. 

Generally speaking, employment standards laws don’t have much to say on the issue either. 

“There is no provision in employment standards legislation (around political rights) other than this right to go vote on voting day,” he said. 

So where should a workplace draw the line when it comes to office hours electioneering?  

Legal landscape

The first thing to make sure of is whether or not there are, in fact, provisions for political beliefs in your province’s human rights code, said Erin Kuzz, founding partner of Sherrard Kuzz in Toronto. 

“You have to make sure that you understand the legal landscape in which you’re operating. And what I mean by that is, in some provinces, human rights legislation actually protects political beliefs… under their human rights code,” she said.  

“For instance, B.C. and Manitoba do protect political beliefs in their human rights codes, but Ontario doesn’t. So if you are an employer looking to understand what you can and can’t regulate in the workplace, you’d better start by understanding the legal regime you’re working under.”

There is also the potential issue of workplace harassment, said Kuzz. 

“The other thing to bear in mind is that most, if not all, provinces have legislation that prohibits harassment — often referred to as anti-bullying legislation. So we’ve gone beyond the situation where you’re prohibited only from harassing someone based on one of the protected grounds under the code, like gender, religion or race — now, in most provinces, you can’t harass anyone based on any basis in the workplace,” she said. 

To the extent that a person could characterize his employer as harassing him to vote a certain way, it might fall under occupational health and safety legislation around harassment, said Whitten. But that would be quite unusual. 

“I’ve never seen one of those complaints, so it would be novel,” said Whitten.

And the behaviour would have to be fairly significant to qualify as harassment — simply expressing a preference for a political candidate isn’t harassment, he said. 

“Me walking around with a Stephen Harper hat on, that’s not harassment,” said Whitten. “Employers are really free to express their leanings, as are managers and any other employee.”

Treading carefully

To manage the potential risk of a political smackdown in the office, employers in provinces with no political belief protections in the human rights code might consider a non-solicitation policy, said Kuzz. 

“In Ontario, what I’d say to an employer is you have the right to — and you probably should strongly consider — having a non-solicitation policy. And that could include things like soliciting for support for a political party, for charitable functions,” she said. 

 “But it’s important to make sure that if you have a policy like that, it’s clear, it’s communicated to employees… And you have to enforce it consistently — and that’s a really big one because that’s where employers can get into some trouble: If they have this policy sitting there, they rarely if ever enforce it, and they selectively decide to enforce it when they hear something they don’t like.”

And while employers can prohibit those types of speech during working time, they really don’t have the right to control what people talk about on their lunch hour, she said. 

Employers might also consider how the code of conduct is worded, said Susan Heathfield, consultant and owner at TechSmith in Lansing, Mich., and a human resources writer. 

“There should be a written statement… in the code of conduct (about) respectful treatment of our colleagues. This would be very commonplace in a code of conduct. It doesn’t necessarily need to address politics directly, but just respecting one another’s beliefs, opinions, values,” she said. 

Also, clarifying expectations in a written policy is never a bad idea, said Whitten. 

“A best practice for an employer, if they’re at all concerned about this happening, is to come up with a policy that clearly lays out what your expectations are (and) what the consequences for not following the rules are.”  

Employers can also exercise progressive discipline if their provincial human rights code doesn’t cover politics, said Whitten. 

“It’s open to an employer to say, ‘Look, I don’t like the fact that you continue to recruit for the Conservative party, so I may take disciplinary action against you,’” he said. 

“I can say, ‘You’re wasting company time when you should be focused on your work and instead you’re recruiting for the NDP.’

“An employer can progressively discipline an employee for virtually anything as long as it’s not a human rights code issue.” 

Relationships, power dynamics

One more element to consider that often gets overlooked in the legal talk is simply that of positive working relationships and productivity, said Heathfield. Political talk at work can really damage productivity if conflicting beliefs arise between co-workers. 

“It polarizes people and it’s not good in a work setting where people have to work together to produce results,” she said. 

“If they have negative feelings about each other because of political positions, or the fact that a colleague won’t keep their mouth shut about their beliefs, it interferes with the ability of the employer to offer a work setting in which people can actually accomplish things and feel good.

“In a workplace, where relationships actually matter more than one might think for accomplishing work, anything that is polarizing should not really take centre stage.”

Also, relationships with a power dynamic — such as manager-subordinate relationships — should be handled with particular care, said Kuzz. 

“We usually counsel employers to do their best to make sure that their senior team or members of management aren’t doing any 

political ‘pushing’ in the workplace, simply because when you’ve got that kind of uneven power relationship, a lot of people aren’t going to feel like they have the right to say, ‘No thank you,’” she said. 

“You’re better off if you just keep it outside the workplace.”

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