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Legislating the right to disconnect

right to disconnectThe right to disconnect has been in the news lately following the release of the federal government’s report on their year-long consultations about modernizing the federal Canada Labour Code. Have a look at the full report: What We Heard: Modernizing Federal Labour Standards. 93% of respondents stated that employees should have the right to refuse to respond to work-related communication outside of working hours.

The french example

In France, the right to disconnect was enshrined in law in 2017. French workers in companies of more than 50 people have the right to turn off their work devices outside of working hours. The law was passed amidst concerns about unpaid overtime and increased employee burnout. Digital connectivity was slowly eroding leisure time. France is famously protective of leisure time and work there is highly regulated. The French also enjoy a minimum of five weeks of annual vacation and a standard 35-hour work week.

French companies have also reportedly taken matters into their own hands by creating workplace rules prohibiting or disabling email sent after hours and prohibiting the scheduling of meetings in the late afternoon.

Is this really necessary?

While getting fired for not checking or responding to an email outside of office hours is not something we commonly see, for many employees who want to impress and rise in the corporate ranks, being connected at all hours is an implicit expectation. The concern is that employees are increasingly stressed and not rested when they return to work.

Claims for unpaid overtime are also a real concern. Compulsively connected employees may be working lots and lots of unauthorized overtime. When work hours are tracked by the employee alone, an employer will have little recourse in defending against an unpaid overtime claim. Employees have the right to be paid for all hours worked. While working unauthorized overtime hours may warrant discipline, it will not exonerate an employer from having to pay that employee.

There are concerns that legislating the right to disconnect may go too far. Some employees are legitimately required to be on call. Flexible work schedules are also increasing in popularity. These often blur the lines of work hours and prohibiting communication after hours would make little sense in these cases.

The Canada Labour Code

As I mentioned, the report is about modernizing the federal labour law, so the report is unlikely to have a direct impact on most workplaces in Canada. The vast majority of workplaces are governed by provincial employment standards. The Canada Labour Code governs federally regulated workplaces, which include banking, transportation and telecommunications — approximately 6% of the Canadian workforce.

In Ontario, our employment laws were modernized and overhauled by Bill 148. These changes did not address any right to disconnect. Often, however, a federal change ripples through the provinces — as has recently been the case with the new 18-month parental leave — so the issue may not ultimately remain isolated to federally governed workplaces.

We will stay tuned and see what Justin and his pals decide to do.

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Lisa Stam, Spring Law

Founder of Spring Law, Employment and Labour Lawyer at Spring Law
Lisa Stam is founder of Spring Law, a virtual law firm advising exclusively on workplace legal issues for employers and executives. She practices all aspects of employment, labour, privacy, and human rights law, with a particular interest in legal issues arising from technologyinthe workplace. Lisa’s practice includes a wide range of entrepreneurs in the tech space, as well as global companies with smaller operations in Canada. In addition to the day to day workplace issues from hiring to firing, Lisa frequently blogs and speaks on both the impact, risks and opportunities of social media andtechnology issues in (and out of) the workplace, as well as the novel ways in which changing expectations of privacy continues to evolve employment law. Read more here.
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