[UPDATE (March 27): As noted below, contrary to the comments by ‘experts’ in the media report, it is unlawful for an American employer to dismiss employees for engaging in concerted activities to protest something. The employees fired for wearing orange t-shirts because their employer thought they were engaging in protest have hired a lawyer, who is planning to bring a complaint under the NLRA. Here is that story. Note that in Canada, employees could not bring a labour law complaint for this sort of protest. Only “trade union activity” is protected in Canada, not general rights to associate and protest]
When I teach employment law, I always present a series of scenarios to my students involving termination of employees. One of the questions I ask is whether an employer in a bad mood could call all of its employees into a meeting and then fire everyone wearing a certain colour of clothing. Say, orange.
Thanks to some nutty, apparently not very smart, Floridian lawyers for giving me a real life example of this scenario. A law firm in Deerfield Beach fired 14 employees for wearing orange shirts to work. There wasn’t a dress code banning orange. The geniuses that run the firm thought the employees were engaging in some form of protest, while they had really just decided to wear orange so they would look like a team when they went out drinking after work. When the employer was told this, it still fired them, with no notice or severance. Florida is an “at will” state, meaning that an employer can turf an employee at any time, for no reason at all, with no notice or severance. American lawmakers claim this model is good for employees.
Did the Law Firm Violate American Labor Law?
Note firstly that, in fact, the Florida law firm has probably violated American law, notwithstanding that the lawyers who run Deerfield and the other ‘expert’ cited at the end of the article suggest that termination was completely legal. The dismissal would be lawful in Florida under the common law and statutes that govern the individual (nonunion) employment relationship. However, the employer told the employees they were being fired because the orange shirts were part of a protest. Terminating employees for organizing a combined workplace protest is undoubtedly unlawful under American labor law (the National Labor Relations Act), isn’t it my American readers? The NLRA protects any form of concerted activities by employees. The key language is here:
NLRA: RIGHTS OF EMPLOYEES
Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…
Sec. 8. [§ 158.] (a) [Unfair labor practices by employer] It shall be an unfair labor practice for an employer–
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7
Had the Florida employer simply turfed the employees without giving any reason, it might have been ok. However, once it told the employees they were being fired for engaging in a combined employee protest, they clearly brought themselves within the NLRA prohibition on reprisals for employee associational activity. Not sure if the employees plan on filing an NLRA complaint, but I would.
Could an Ontario employer fire its nonunion employees for wearing an orange t-shirt under the rules of common law?
Now cross the border. Let’s assume we are talking about an employer that does not have a set dress code–if wearing orange violates a fixed dress code, then that gives the employer greater justification. Under Canadian common law, an employer can absolutely fire employees for wearing orange, green, or plaid. Unlike Florida though, the Canadian employer would have to provide notice of that termination. A nonunion Canadian employer does not need to have any reason to fire an employee under the Canadian common law model, so firing someone for a stupid reason is just fine, though notice must be given first.
Are there any employment law statutes that prohibit an employer from firing an employees for wearing orange shirts?
Well, if a person is wearing orange because their religion requires it, then the Section 5 prohibition in the Human Rights Code on discrimination in employment for religious reasons would apply. However, if the employees are wearing orange not for religious reasons, but in expectation of a night of drinking, then no statute applies.
Note we are only talking about nonunion employees. In a unionized workplace, the employer has to have a reason, or “just cause” to fire someone. That is one of the main benefits of being in a union. However, nonunion employees have no protection against a stupid reason for dismissal. At least not in Ontario. In the Federal sector, the Canada Labour Code does require the employer to have a reason to fire someone (see Division XIV, beginning at Section 240). Quebec and Nova Scotia also have statutory cause provisions. So if you are unlucky enough to be a nonunion employee in Ontario, you can be turfed for wearing orange.
Would the Prohibition Against Reprisals for ‘Trade Union Activity” in Labour Law Apply?
And note that the Ontario Labour Relations Act likely doesn’t help you either. Unlike the NLRA, which protects concerted employee activity whether or not a union is involved, Ontario labour law protects only concerted “trade union activity“. See Section 72.
If an Ontario employer fired a group of employees who it thought were engaged in concerted activity not involving a trade union in any way, then the Labour Relations Act ban on reprisals for ‘trade union activity’ doesn’t appear to apply. The only way it would apply is if you can say that any associational activity by employees is covered by the OLRA because it is possible that at some point in the future that activity could morph into “trade union” activity. That would be a very elastic interpretation of the language, but the OLRB has said in one case that it is at least possible to argue that interpretation of the legislation (see Miniworld Management, where an employer dismissed all employees who had formed a nonunion employee association and asked the employer to discuss working conditions)
So we see that whether you can be dismissed for wearing orange in Canada depends upon why you are wearing orange, whether you are unionized, and what jurisdiction governs your workplace.
If you are wearing orange for religious reasons, or in support of a trade union organizing campaign, you probably cannot be dismissed. If you are unionized, you can’t be dismissed. If your employer is governed by Federal law (like a bank or airline), then it needs to establish that wearing orange is a good reason for dismissal under the Canada Labour Code. But if you are a nonunion employee wearing orange for non-religious reasons at an employer governed by Ontario law, then you are out of luck.
Does this all seem quite random to you?
Would you prefer a general law that requires all employers to show some valid business reason to fire you, like that found in the Canada Labour Code or under unionized collective agreements?