Bad Connection: What is the “Right to Disconnect” and Why Do Employers Need to Know About It?
NOTE: This blog was drafted in 2018. Since that time, the Ontario government has amended the Employment Standards Act, 2000 to require certain employers to have a policy on disconnecting from work. For more information about the required policy, check Janet Lunau’s March 2022 blog on the subject.
In the last few weeks, there have been several reports about the “right to disconnect” from the workplace. It’s a concept that’s gaining traction amongst workplace rights advocates. Given the recent changes to the Ontario Employment Standards Act, 2000 (the “ESA) following Bill 148 and the provincial government’s push for more pro-employee changes before the June election, Ontario employers need to know what the right to disconnect is and why it’s important to their businesses.
What is the right to disconnect?
The right to be free from work is not a novel concept. In the ESA, for example, employers must provide employees with the following (with some exceptions):
eating periods of at least 30 minutes every 5 hours;
11 consecutive free hours in every 24-hour period; and
24 consecutive free hours in each week.
These hours of work restrictions were enacted many years ago with (a) the benefits of rest in mind and (b) the assumption that being away from work meant that one was free from work. The legislative drafters at the time did not contemplate the advent of the internet and Smartphones, the existence of which means that being away from work is not synonymous with being free from work.
The concept of the right to disconnect began to gain attention in France in January 2017, when the government enacted a law requiring employers to have policies dictating when employees were not permitted to send or answer emails. Other companies started to encourage employees to refrain from checking emails after certain hours or while on vacation.
Essentially, the right to disconnect is an employee’s entitlement not to receive or respond to e-mails and other communications during off-hours without fear of reprisal or penalty from their employer.
What are the legal implications of requiring employees to remain connected?
There are several legal issues that arise when employees remain connected and continue to work outside of business hours:
Hours of Work Violations: If an employee regularly works an 8.5-hour day in the office but spends time when they first wake up, while they are in transit to and from the office and then between dinner and bedtime or on weekends answering emails, they could be clocking 12+ hour days. Absent any applicable exemptions, their employers may be in violation of the ESA’s above-noted hours of work limits.
Undocumented Excess and Overtime (OT)[i] Hours: Many employers cannot or do not track employees’ hours when they’re not in the office. These employers are at risk of claims for both excess and OT pay and, without any tracking mechanism, they will be nearly powerless to defend those claims.
Employee Burnout: Everyone needs time away from the office and their Smartphones to relax and recharge. Some instances of employee burnout, particularly at more senior levels, are tied to overwork. Burnout can lead to poor performance, additional sick days and, at the most serious end of the spectrum, claims for disability or constructive dismissal.
Proactive steps employers should take
Employers who wish to get ahead of any potential “right to disconnect” legislation and minimize their exposure to any excess or OT claims arising from remote work should consider the following:
Don’t Assume Salary = OT Exempt: Many employers believe that salaried employees are not entitled to OT pay, which is not correct. It is the type of work that the employee performs and the nature of the employer’s industry that dictates OT entitlement. (Read here for more details.)
Enact After-Hours Communication Processes: Using written policies and protocols for after-hours work encourages managers and employees to be mindful of sending and responding to after-hours messages, and when and how after-hours work must be performed. Employers must ask whether they wish to encourage a culture of round-the-clock employee availability and, if so, why that’s necessary.
Don’t Hand Out Smartphones Like Candy: Not all employees need to be accessible after-hours. Unless an employee is working offsite, playing a critical role or OT-exempt, employers should ask whether they need Smartphones or remote access. Minimizing Smartphone and remote access also reduces instances of unauthorized or excess work by those employees.
Enforce Workplace Timesheet Requirements: Despite a policy that says an employee will only receive pay for “authorized” excess or OT hours, the ESA requires employers to pay for all hours, authorized or unauthorized. To ensure excess hours are tracked, employers can request that employees report excess and OT hours on a weekly or otherwise regular basis. Evidence of an employer’s proactive reminders to employees and the absence of any contemporaneous reports by employees can help to thwart belated OT pay claims.
Make Managers Accountable for OT: A policy is only helpful if it’s enforced. If managers aren’t accountable for OT hours worked by their employers, then enforcement may be lax. Employers should ensure that part of a manager’s responsibility, performance appraisal and budget is tied to monitoring and management of excess and OT hours.
As the right to disconnect movement gains traction, employers must prepare for the legal and practical impacts that will affect their workplaces.
[i] Excess hours are all hours above an employee’s usual hours of work up to 44 hours in a week, which are paid based on an actual or derived hourly rate. OT hours are all hours worked above 44 hours in a week, which are paid at 1.5x an actual or derived hourly rate. These calculations are based on current Ontario regulations, but are subject to exemptions and exceptions, including in the ESA and one of its regulations.
