No Facebook, An Employer Cannot Block the Word ‘Unionize’ from Workplace Chat

Written by David Doorey, York University

In a presentation this week, Facebook apparently promoted a new feature on its Facebook Workplace that would permit employers to block words like “unionize”. Ah, word to Canadian employers: if you do that, you’re almost certainly breaking the law.

Every Canadian labour relations statute protects a right of workers to organize unions and to participate in lawful union related activities. This protects a right of workers to talk about unionization at work. Employers may impose restrictions on conversations about unionization during times when the employees are supposed to be working, as long as the same restriction applies to other non-work related discussions too. So for example if the employer has a rule prohibiting talking during working time, then that rule would ban discussions about unionization the same as it would block discussions about anything else.

However, if the employer permits employees to converse at work about non-work related stuff, like sports and current events for example, then rules banning only conversations about unions have been ruled by some labour boards to be discriminatory against union activities. A rule saying that employees can talk about anything except unions and collective bargaining obviously singles out unions for special adverse treatment. Moreover, it is always unlawful for an employer to ban conversations by employees about unionization at any time when the employees are not actually working (off-hours, breaks, lunch), whether at the workplace or not.

This prohibition on employers restraining employees from discussing unions appears in the various unfair labour practice provisions in Canadian labour relations statutes. In Ontario, the key sections are Section 70 [no interference in the formation, selection, or administration of a union] and Section 72 [no restraining of employees’ rights to engage in lawful union activities]. Similar provisions are found in other Canadian statutes. Section 77 of the OLRA clarifies that an employer has a legal right to prohibit union organizing during working hours.

These laws prohibiting employers from interfering in lawful employee conversations about unionization were explained in the leading decision of OLRB Chair George Adams way back in 1982 in Adams Mine [1982] OLRB Rep Dec 1767:

The workplace is the most effective location for “union activity” to be carried out.  A policy denying this forum to employees would obviously impair the effective exercise of statutory rights particularly the right of self-organization.  On the other hand, company premises constitute private property and are established for the primary and important purpose of carrying on business activity.  …  Section [70] provides that no employer and no person … shall interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union.  Similarly, section [72] prevents an employer, among others, from seeking, by any kind of threat or by imposition of any kind of penalty or by any other means, to compel an employee to cease to exercise any other rights under this act.  

 

 

An employer who prevents his employees from attempting to organize a trade union while they are on company premises by a broadly drafted no-solicitation rule backed by disciplinary action runs the risk of violating these sections.   This, of course, does not mean an employer is deprived by the Act of maintaining productivity or discipline or of securing his property from encroachment by strangers with whom he has no relationship.  Section [77] makes it clear that no person is authorized by the Act “to attempt at the place at which an employee works to persuade him during his working hours to become or refrain from becoming or continuing to be a member of a trade union”.  [our emphasis]  The purpose of this section is to afford an employer an answer to the charge that he has interfered with a person’s rights under section 3 of the Act by preventing that person from attempting to solicit an employee during working hours.  The section recognizes the employer’s bona fide interest in maintaining an efficient business enterprise and the fundamental obligation of employees to work in return for compensation.  

But section [77] does not speak to activities outside of an employee’s working hours while on his employer’s premises.  Labour boards have consistently interpreted the phrase “working hours” to refer only to the period of time during which an employee is required to undertake his duties and responsibilities.  Therefore the section does not apply to those periods of time an employee is on company property before shift, during coffee break, during lunch break, or after shift.  This is so even if the employee is being paid for such time, otherwise an employer could prevent the exercise of statutory activity by the simple expedient of a money payment.  The approach of the statute and this Board has been to create a meaningful balance between the statutory rights of employees and the proprietary and commercial interests of employers.  …

George Adams, Q.C., Chair of the OLRB, 1982

Let’s return now to Facebook’s Workplace app, which is designed to encourage employees to converse with one another. Facebook claims that Workplace “is a communication tool that connects everyone in your company, even if they’re working remotely.”

Unless the App shuts down during periods when an employee is not “on the clock”, it necessarily facilities discussion among employees during non-working time as well as working time. If this is the case, an employer that used features to block key words relating to unions and unionization would be interfering with the employees’ legal right to discuss unions during non-working time. It’s the modern day technological equivalent of an employer walking into a lunch room and telling the employees that they are not allowed to say the word “union” or “unionization” during their lunch break. There’s no doubt that this would be illegal.

If the App somehow was only available for discussion during working time, then a different considerations arise. In theory, the employer could set the rules such that the only topic(s) permitted to be discussed are those that are pre-approved by the employer. For example, the employer might say “this discussion board is exclusively to discuss this months’ sale figures”. In that case, the employer would probably be within its legal rights to ban discussion about any other items, including unionization. However, if it is an open forum on which employees are free to discuss anything, then it would again be unlawful for the employer to weed out by using blocking features discussions about unions. This would be the equivalent of an employer telling employees that they can talk about anything at all at work, except unions. Such a rule would also run afoul of Canadian labour laws.

So, the message to employers would be that just because you can regulate employee chat rooms, it doesn’t mean that it is a good idea to do so when the goal is to impede conversations about unionization.

David Doorey, “No Facebook, An Employer Cannot Block the Word ‘Unionize’ from Workplace Chat” Canadian Law of Work Forum (June 12 2020): http://lawofwork.ca/?p=12670