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Right to Disconnect

Ontario’s Bill 148 may have created a right to disconnect – even for supervisors and managers

The right to disconnect – to leave your work at work, instead of buzzing in your pocket – is regarded as an aspiration instead of a reality for most Ontario employees. But there may already be a legal basis for the right to disconnect sitting right under our noses, in none other than the Employment Standards Act the (“ESA”).

What is the right to disconnect?

Given the ease of communication that modern technology has afforded, the lines between an employee’s work and private life are blurring more than was ever possible. Constant connection to the workplace has become the norm — even the expectation for many jobs.

The right to disconnect is a statutorily-protected right to ignore work-related calls, e-mails, and other electronic messages off-work hours. France was the first jurisdiction to legally adopt the right to disconnect in 2016.

Do Canadian employees have a right to disconnect?

No right to disconnect has been formally adopted in Canada, although the federal government is considering a right to disconnect for employees in federally-regulated industries, such as banks and telecommunications.

Is there any right to disconnect in Ontario?

Up until (arguably) the recent amendments to the ESA, no right to disconnect existed for Ontario employees. While being required to answer calls or e-mails on a Saturday morning, for instance, could entitle an employee to overtime pay, categorically refusing to do so could (in many cases) constitute misconduct.

Enter Bill 148’s new scheduling requirements

In 2017, Ontario passed Bill 148 – a retrofit of its employment standards to adapt to the changing realities of the modern workplace.  One of the changes to the ESA was the addition of Part VII.2, which deals with scheduling and on-call work.

Among other things, Part VII.2 of the ESA says this: in most cases, if your employer requires you to work on a day for which you’re not scheduled, they must provide you with: (a) at least 3 hours’ pay, regardless of how much time is actually spent working; and (b) at least 96 hours’ notice of the work. Without 96 hours’ notice of the work, the employee may refuse to work in most cases.

What do the scheduling requirements have to do with the right to disconnect?

The scheduling requirements in Part VII.2 of the ESA might mean that employees on a day off, for all intents and purposes, have a right to disconnect. That hinges on whether answering e-mails or phone calls constitutes “work” under the ESA.

While “work” is not defined under the ESA, Courts and Tribunals interpret the ESA in a way that extends maximum protection to employees. A court or tribunal is very likely to consider a requirement to answer phone calls or e-mails as “work”. That means that, for instance, if your boss emails you an urgent question about budget reports on Saturday morning, you are likely entitled to wait until Monday to figure out the answer.

What about supervisors and managers?

The conventional wisdom in Ontario is that, since supervisors and managers are exempt from all of the ESA’s rules regarding hours of work, those jobs are 24/7 gigs and employees must stay on top of work e-mails, even on their days off.

Interestingly, however, supervisors and managers are NOT exempt from the scheduling requirements Part VII.2 of the ESA. That means that, if a supervisor or manager has a right to specific days off, that employee also likely has the same right to disconnect as any other employees on those days.

Can employers get around this with creative scheduling?

Since this is fundamentally a matter of scheduling, one might wonder whether employers can get around this by simply “scheduling” their employees to answer work e-mails.

For non-managerial and non-supervisory employees, there are going to be at least some days where employees have a right to be off the grid; all such employees are guaranteed at least 24 hours free from work each week, and at least 48 hours free from work every 2 weeks. Employees cannot be required to work during those periods.

It is less clear whether employers can use this technique on supervisors and managers; there is nothing in the ESA preventing supervisors and managers from being on-call 24/7. However, Courts and Tribunals generally seek to avoid interpretations that allow employers to skirt the ESA and might easily reject an employer’s argument that the job requires 24/7 attention unless that is clearly borne out by the evidence.

Does that mean I can turn my work phone off when I’m not at work?

Probably not, due to the limits on the right to refuse work in this context. First, the right to refuse work only arises in respect of entire days off – for instance, it does not address after-hours e-mails on a workday. Second, the right to refuse work only arises if you have been given less than 96 hours’ notice. Third, the sections require an employee refusing work to “notify the employer of the refusal as soon as possible”, which in many cases sounds like more trouble than it’s worth.

What can I do about it?

We recognize that most employees do not want to create a conflict by insisting on their strict legal rights. If and when things get contentious, speak to a specialized employment lawyer. Call us today for advice on your workplace issue.

 


Contact Nicholas Goldhawk

Contact Nicholas Goldhawk, the author of this article, about any employment law related questions or issues you may be facing. Call 416-304-7010 or email him at ngoldhawk@btzlaw.ca.

Nicholas is an Associate of the Management-side Labour Group at BTZ. In this role, he advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiations, arbitrations, wrongful dismissal defence, breach of contract, breach of fiduciary duty, and human rights.

Before joining BTZ, Nicholas articled and worked as an associate at a boutique labour and employment firm in Toronto where he assisted both employee and employer clients in formulating practical solutions for a wide variety of workplace-related issues.

Nicholas was called to the bar in 2017, after earning a J.D. from Osgoode Hall Law School. Prior to attending Law School, Nicholas obtained his Honours Bachelor of Journalism from Carleton University.

Before attending law school, Nicholas worked as an investigative journalist for a Canadian current affairs TV program.

Nicholas Goldhawk


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Equal Pay for Part Time Work begins April 1, 2018

For Ontario employers, employing part time and temporary workers is about to become a lot more expensive. On April 1, 2018, the “equal pay for equal work” amendments to the Employment Standards Act, 2002 (the “ESA”) by Bill 148, the Fair Workplaces, Better Jobs Act 2017, come into legal effect.

Ontario employees have long had the protection of the Pay Equity Act, and similar provisions in the ESA, that prevented women (and men too) from being paid less than their peers on the basis of sex. As of April 1, 2018, the ESA will now provide for an entitlement for equal pay from an employer regardless of a difference in employment status.

“Difference in employment status”, in respect of one or more employees, will now be defined as:

a difference in the number of hours regularly worked by the employees; or a difference in the term of their employment, including a difference in permanent, temporary, seasonal or casual status

As a result, employers will be required to pay casual, temporary, part-time, and seasonal employees the same rate as permanent and full time employees so long as:

  • they perform substantially the same kind of work in the same establishment;
  • their performance requires substantially the same skill, effort and responsibility; and
  • their work is performed under similar working conditions.

The legislature has attempted to define “substantially the same” to mean “substantially the same but not necessarily identical.” How this will be interpreted by the Ontario Courts is anyone’s guess but likely it will be used to grant discretion to the Tribunal, Judge or Jury on whether two similar jobs are “substantially the same”.

Exceptions

Differences in pay between employees of different sex or similar employment status are permitted so long as the difference in rate of pay is the result of:

  • a seniority system – a system that pays employee based on length of service;
  • a merit system – a system that pays employees based on merit: their skills, education, competence, etcetera;
  • a system that measures earnings by quantity or quality of production – a piecemeal system or similar; or
  • any other factor other than sex or employment status.

Employers should be careful to ensure that any system they are using to determine employee pay is being implemented fairly and communicated to employees in advance. Any measurements of quantity or quality should to the greatest extent possible be objective and recorded.

The Process

Any employee who believes that their rate of pay does not comply with the Equal Pay for Equal Work section of the ESA, may request a review from their employer. Employers are, thereafter, required to either:

  • Adjust the employee’s pay; or
  • Provide a written response setting out the reasons for refusing.

As discussed in my article Important Upcoming Changes to the Ontario Workplace, any written response must be saved according to the new record keeping requirements in the ESA for five (5) years.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Important Upcoming Changes to the Ontario Workplace

On November 27, 2017, the Fair Workplaces, Better Jobs Act 2017 received royal assent and became Law in Ontario. Set out below are some of the most important changes to Ontario’s workplaces.

Read more