On October 10, 2007, voters will head to the polls for a provincial election. With the approach of the election, employers must be aware of their obligations, including allowing employees time to vote and respecting an outspoken employee’s political opinions. While such obligations are not unfettered, a high degree of protection is afforded to participation in public life and political speech.

TIME OFF TO VOTE

The Ontario Election Act[1] gives every employee who is qualified to vote the right to take three consecutive hours, while the polls are open, for the purpose of voting. If an employee’s hours of work do not allow for three consecutive hours to vote, the employer must grant time off as necessary to meet the three hour requirement.[2]

Voting times in Ontario will vary depending on the time zone in which employees are located. The Election Act states that polling stations will be open from 8:00 a.m. to 8:00 p.m. in the Central Time Zone and 9:00 a.m. to 9:00 p.m. in the Eastern Time Zone.[3] These times could be changed by the Chief Electoral Officer prior to the election, so employers should be alert for any announcement to that effect.

Assuming voting times do not change, a Greater Toronto Area or Ottawa employee scheduled to start work no earlier than 12:00 p.m. or to finish work no later than 6:00 p.m. will not require extra time off work to vote. Employees whose work schedule is such that it does not allow them three consecutive voting hours before or after their shift must be permitted to start late or finish early. Since the Election Act confirms that the time off may be scheduled at a time that best suits the employer, it is up to the employer to determine whether an employee is permitted a late start or early finish.[4]

The Election Act also states that employers may not make deductions from the wages of an employee or impose a penalty on an employee for the time he or she is allowed for voting.[5] Accordingly, if you have to release some of your employees from work, they should be paid as if they had worked a full shift.

Employers who do not comply with the Election Act risk a fine of up to $5,000.00.[6]

LEAVE TO PARTICIPATE IN ELECTION

In addition to time off to vote, the Election Act provides that an employee who requests a leave of absence to perform his or her duties under the Election Act, which duties may include acting as a returning officer or polling official, must be granted such leave provided the employee made the request seven days before the leave was to begin. An employer is not required to remunerate an employee for such a leave of absence.[7]

POLITICAL EXPRESSION AND EMPLOYEE FREE SPEECH

Many employees in the coming weeks will participate in informal water-cooler debates. An employer’s ability to restrain an employee’s political expression depends on whether the employee works in the public or private sector, but in either case it is limited and in some cases it is even protected by the Canadian Charter of Rights and Freedoms.[8]

Generally speaking, employees owe a duty of loyalty that prevents them from publicly criticizing their employers, or from engaging in activities that prejudice the employer’s interests or that damage the employer’s reputation. It is, however, very difficult to imagine circumstances where an employee’s expression of his or her political views would violate this duty of loyalty or so damage the reputation of a private sector employer that it would provide cause for discipline or dismissal.

What about the employee whose political opinions create workplace tensions or make other employees uncomfortable? Where this occurs on the employer’s time or interferes with productivity, the conduct may be disciplinable. Discipline may also be warranted where the employee’s speech trenches on the rights of groups protected by human rights legislation.

Apart from these narrow exceptions, employees are free to speak their minds on political matters without interference from their employers.

CONCLUSION

Apart from allowing employees time off to participate in the upcoming provincial election, employers must respect employees’ rights to free speech and not interfere with employees’ political expression. Employers must generally respect and uphold the right of their employees to express their political views.