'When you have an employee who wants to do an outside activity... the question is always: can they still do their job?’ says lawyer offering tips for HR
With voters in in Ottawa and Toronto heading to the polls in October , some employers may soon find themselves managing a situation they never planned for — a staff member who wins a seat.
Elected officials across Canada are permitted to hold outside employment or manage a business, according to the Office of the Conflict of Interest and Ethics Commissioner. The only obligation is that elected officials must make sure their private affairs don’t create a "conflict of interest" — defined by the Commissioner as any competing interest that could interfere with a public officer’s ability to act objectively.
While there is no research specifically tracking how many elected officials hold outside employment, a 2018 Toronto Star investigation found 152 Members of Parliament (MPs) out of 300 across Canada had income from another source, and for dozens of them it was secondary employment.
It raises a practical question: how should employers handle staff who win a seat?
Kate Allen, an employment lawyer at Osler, Hoskin & Harcourt in Vancouver, says it starts with one question.
“For any employer, when you have an employee who wants to do an outside activity — whether it’s a second job, a gig on the side, or in this case, someone who’s been elected to office — the question is always: can they still do their job?” she says.
No automatic right to a leave
One of the main misconceptions that employers have is that a newly elected employee is automatically entitled to a leave of absence — the same as they would be if running as a candidate. Allen says that’s not the case.
Many election acts across Canada do provide job-protected leave for candidates who want to run for office, and employers are obligated to provide it. However, that protection does not necessarily extend once the election is won.
“Once you’re actually elected into office, you may not have any sort of right to a leave,” Allen says. “So, if the plan is to do both roles and the employee is not going to quit their job, it falls on the employer to look at the situation and decide: ‘Are we going to continue this person’s employment or not?’”
For non-unionized employees, an employer can dismiss without cause — provided the decision is not discriminatory or retaliatory under applicable legislation. If the dual role is affecting performance, it could become grounds for just cause dismissal, Allen says.
“Elected officials often face significant demands on their time or may need to travel, and that may simply not be compatible with their primary employment,” she says.
Conflict of interest is real exposure
The two issues that employers need to watch for are conflict of interest and reputational risk, Allen says.
“If you’re a property developer in a particular city and you have projects subject to City Hall approval, it might be a risk to your business to appear as though you have some sort of sweetheart arrangement because one of your employees is now an elected official.”
It requires employers to examine what role the employee holds in the organization and what they now have access to in their elected capacity, Allen says. In some jurisdictions, conflict can be automatic.
“An employee of a municipality who wins a seat on that same municipality’s council will not, in most cases, be permitted to remain employed there,” she says.
According to the Public Service Employment Act, a federal employee who wins elected office at any level “ceases to be an employee.” Ontario’s Municipal Elections Act also requires municipal employees in similar circumstances to resign.
Political belief is protected ground
Whatever decision an employer makes, it needs to be grounded in legitimate business concerns — not the employee’s political views.
Under the BC Human Rights Code, discrimination based on political belief is a protected ground in employment. The Code prohibits employers from taking any negative action related to political beliefs — that can include an employee’s decision to support a specific political party, advocate for specific legislation, or run a public campaign on political issues. While it’s not commonly invoked, Allen says employers need to know it exists.
There’s no equivalent in the Ontario Human Rights Code.
“Any decisions an employer makes should clearly separate the employee’s political beliefs from the employer’s decision,” she says. “The grounds for any action should be things like a contractual clause around outside engagement or legitimate concerns about demands on the employee’s time — not because they ran for a particular party.”
What employers should do now
For employers who decide to keep the employment relationship going, the next step should be reviewing the contract for conflict-of-interest clauses, confidentiality obligations, and any provisions around outside activities.
Both sides need to be clear on what priority takes when conflicts come up. “Getting that alignment upfront can prevent significant problems later,” Allen says.
Workplace policies are worth a look, too. A no-solicitation policy that applies evenly — from fundraising to political campaigning — is practical and defensible. Without one, things can get inconsistent fast.
“You end up in situations where no one objects when an employee asks coworkers to buy their child’s Girl Guide cookies, but when that same employee does something that might be perceived as political, there’s considerably more pushback,” she says. “Being even-handed with those kinds of rules is much better practice.”
