Workers have the right to unplug when workday is done: Low

Ontario employees have the “right to disconnect” if they are being asked to answer emails and make phone calls after work hours, and they should seek legal advice if told otherwise, says Toronto employment lawyer Ellen Low.

“If you are getting pushback about not monitoring your cellphone or responding to messages after hours, go see a lawyer, as the Employment Standards Act (ESA) makes it clear that demand is just not acceptable,” says Low, principal of Ellen Low Employment Law.

The “right to disconnect” concept first rose to prominence in 2017, after France passed a law mandating that people who work for companies employing more than 50 people have the right to turn off their work devices outside of working hours, she says.

According to an article in Canadian Employment Law Today, Italy, the Philippines, New York City and Quebec have addressed this same issue.

When federally regulated private-sector employers were consulted about whether a “right to disconnect” should be incorporated in the Canada Labour Code, 93 per cent of respondents agreed it was necessary, according to the article.

“On the other hand, some respondents raised the fact that the workplace must adapt to new economic realities … or that operational needs do not necessarily stop at the end of regular working hours,” the article adds.

“Everybody feels like they’re at work all of the time, especially if your employer has given you a smartphone,” Low tells AdvocateDaily.com. “Sometimes there is an implied expectation that you answer emails and calls at any time.”

She says s. 17 of the ESA clearly sets out the limits for the hours of work, which is generally a maximum of eight hours a day or 40 hours a week.

“There are exceptions, as you can enter into a written agreement with your employer with respect to things like exceeding the daily hours limit or the weekly hour limit, and you can also forgo in writing the eight hours of rest required between shifts, or average overtime over a certain number of weeks,” Low says.

Acknowledging those exceptions, Low says the ESA is clear that an employee has the right to refuse work in excess of eight hours a day or 40 hours in a week, absent a written agreement to the contrary

“Generally speaking, you do have the ‘right to disconnect,’ though the answer is a bit more nuanced than that, and you have to look carefully at your employment agreement to see whether or not you have agreed in writing to work excess hours,” she says.

Because this is a relatively new issue, Low says she is not surprised there is little case law that deals with it, though she is able to point to a relevant ESA case.

According to court documents, employees at a firm were told that for a two-week period they would be required to work overtime and on the weekends, with no days off. A senior tax analyst at the firm raised concerns about that policy both in person and in writing since she was caring for a nine-year-old daughter at home.

Shortly after that, she was told the company was downsizing and she was “not a good fit,” so her employment was terminated. Ten days after her release, an ad for the position she held appeared on a job opportunities website.

The woman responded by filing two complaints, one alleging her firm engaged in reprisal when she insisted it comply with the ESA, with the second complaint alleging the imposition of these overtime hours and weekend work was discrimination based on family and marital status, according to court documents.

“The ESA complaint succeeded and was upheld, with the tribunal agreeing that her termination was clearly a reprisal for her asking not to be forced to work beyond the hours in the ESA limits,” says Low.

“If firms required employees to do that, it still constitutes work, and depending on the situation, it may be overtime. It is also no defence to say that those overtime hours have to be pre-approved.”

Low says employers should consider implementing policies that clearly set out what employees’ obligations are in terms of answering emails and phone calls after hours. This issue is complicated by the fact that managers don’t qualify for overtime under the ESA, so their workday is not limited in the same way as regular workers.

“I have yet to see a company policy that clearly states that managers don’t have to answer work email after a certain time,” she says. “They don’t qualify for overtime, but some probably feel like they are working all the time.”


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