New Zealand employment lawyer outlines what employers need to do before it becomes an issue
Freedom of speech is a right all workers have - but what happens when an employee’s personal expression spills into the workplace, raising concerns about reputation and conduct?
HRD spoke with Russell Drake, Employment Law Consultant at Russell Drake Consulting, based in Hamilton, who noted the issue isn’t uncommon.
“We often see times when the boundary of where a person’s work relationship starts and ends. Comments and actions made outside of work can have real impacts for the place you work, without you necessarily realising,” Drake said.
The comments follow reports that an investigation was launched by an employer after a man wearing a company lanyard heckled Deputy Prime Minister, Winston Peters, during a press conference earlier this month.
The Free Speech Union say the incident had nothing to do with the man's employer, an engineering consulting firm.
"It's common practice for employers to ask employees to wear items like lanyards to help with workplace identification for reasons such as security,” the Union said.
"Companies can't have it both ways: requiring employees to be identifiable for branding or security purposes, but not when expressing lawful personal views on their own time."
In a situation like this it is important to look at when work responsibilities end so personal life can begin, Drake told HRD, to avoid disciplinary action.
“An employee signs an employment agreement that contains hours of work, duties, responsibilities and obligations that may extend beyond contractual hours of work. Employers need to make sure these are clearly outlined and understood, as correct onboarding stops this from happening.”
Drake also noted that the reputation and name of the employer could be damaged drastically by views expressed/viewed under the company banner – not just in person but on social media, too.
“This is why you see a lot of people on social media say in their bio that their views aren’t representative of the company. It helps employers with monitoring,” he added.
Drake emphasised the importance of code of conducts within the employee agreement – outlining acceptable and unacceptable behaviours.
“Employee actions can only be sent for disciplinary if the code of conduct is appropriately worded,” Drake outlined, “it has to refer to actions that bring the employer’s name, brand, or reputation into disrepute.”
“Workers then need to make sure they understand that that code of conduct actually means and what that looks like in practice. There’s an obligation for the employer to educate and provide examples so we know where the line is that can’t be crossed.”
This framework, Drake emphasised, is important for businesses to note to ensure they are protecting their reputation and reducing issues with disciplinaries in the future.
This issue is one of many that highlights friction between company expectations and personal beliefs, Drake concluded, because of the man being identifiable by his lanyard.
“People have the right to free speech, there’s no question there – but in this instance, the employee needs to remove any link between themselves and the employer. If that had happened, would the media have picked up on it? Probably not.”
“When an employee is directly identifiable, the argument of free speech goes out the window because that person is then being identified as potentially speaking on behalf of the organisation they’ve been identified with. This could breach obligations to the employer as set out in contracts and codes of conduct,” Drake said.
