It’s not often that I comment on a U.S. legal decision (mostly because I’m not an American attorney), but a recent decision from the US National Labour Relations Board (NLRB or the Board) is particularly interesting from an employment and labour law perspective and because it also highlights a significant area where US and Canada labour law differs.
In the decision Design Technology Group, LLC, 359 NLRB No 96, the Board ordered the employer to reinstate a number of employees who were terminated for critcizing their employer on a semi-public Facebook page. In the US, most employment is “at will” – outside of contractual language or the goodwill of the employer, there’s no entitlement to notice of termination (or pay in lieu), there is also no right to reinstatement if you’re dismissed without cause – as is the case for federally regulated employees in Canada and in Quebec and Nova Scotia for most classes of long-service employees. In general, reinstatement in the U.S. only happen for labour reasons or due to a discrimination complaint being founded by the U.S. Equal Employment Opportunity Commission
Also unlike in Canada, in the U.S., labour (access to unionization) is federally regulated and s.7 of the National Labour Relations Act protects the rights of employees to discuss and complain about their working conditions in the view that this is a step to potential unionization. You need not actually be talking about unionization. This has been interpreted to include comments made online about working conditions that are disparaging to the employer. For those reasons, the Board (and some may argue that it’s reaching) held that these employees had to be reinstated.
In all provinces in Canada, the right to unionization is protected and employee can’t be fired for taking steps to unionize. However, negative comments about working conditions unrelated to unionization have not been protected in Canada under our labour laws (to my knowledge). Accordingly, while it may not constitue cause, employers are free to terminate employees who make those kinds of comments without fear of reinstatement in most provinces.
In this area, US labour laws are more “progressive” (if you lean that way) and protective than Canadian laws. I think that a real link between the comments and an effort to unionize should be required to be protected. In my opinion, complaining about working conditions publicly and outside of a unionization context breach the common (and civil) law duty of loyaly that employees owe to their employees and should be grounds for discipline, up to an including termination depending on the severity.
Do any of you feel there’s a need for Canada to follow the U.S. on this issue?