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Employment & Labour

Smartphones in the workplace: right to disconnect

A French-style “right to disconnect” for workers is unlikely to make it onto Canadian statute books in the near future, says Toronto employment lawyer Kumail Karimjee.

As the Toronto Star reports, the French government recently passed a law giving workers the right to ignore work emails that come in outside of normal work hours.  

But Karimjee, a founding partner at employment law boutique Karimjee Greene LLP, tells AdvocateDaily.com that the different work cultures in Canada and France, where a 35-hour week has been in place since 2000, mean Canadian jurisdictions are unlikely to follow suit.

“There was a great amount of debate here when the French went to the 35-hour work week, but in Ontario, we appear to be moving in the opposite direction by increasing the ability to work overtime through averaging agreements,” he says. “For many of those same reasons, a right to disconnect doesn’t appear to be on the radar in Canada.”

In France, the right to disconnect applies to companies that employ more than 50 people, requiring them to create policies to limit work-related technology usage outside the office, says the Star story, which quotes French officials who hope the measures will prevent employee burnout.

“Employees physically leave the office, but they do not leave their work. They remain attached by a kind of electronic leash, like a dog,” Benoit Hamon, a Socialist member of French Parliament and its former education minister, says in the story. “The texts, the messages, the emails: They colonize the life of the individual to the point where he or she eventually breaks down.”

Karimjee says many Canadian employers are alive to the same concerns, but would rather tackle them on an individual basis, instead of having their hand forced by legislation.

“Good, well-advised employers are thinking about work-life balance,” he says. “There are some who are instituting policies that address smartphone use during vacations, for example. Some are more prescriptive, and will not allow employees to use work phones, and others will let them choose.

“Part of the reason is that employers are worried about the mental well-being of their employees, but there is also some care being taken to avoid the potential exposure to overtime claims that can flow from the excessive use of work-issued smartphones,” Karimjee adds.  

Ontario’s Employment Standards Act (ESA) leaves open a number of routes for employees to make claims related to work-related cellphone use outside the office, although he says they have not been well-tested in court.  

For example, he says the Act sets a 44-hour threshold per week for most workers, after which they must be paid an elevated overtime rate for work employers “permit” or “suffer” to be done.

“It doesn’t need to be formally required or scheduled by the employer to constitute work suffered or permitted,” Karimjee says. “If you’re dealing with emails outside work such that you exceed 44 hours in a week that could engage the overtime provisions.”

The Act also bars reprisals against employees for inquiring about or asserting their rights under the law, which would give them a degree of protection if they were to make a claim for overtime in such circumstances, Karimjee adds.  

He says that there may be creative arguments that dealing with emails outside regular hours could violate s.18  of the ESA. The section mandates 11 consecutive hours of work-free time per day, subject to certain exceptions.

“If you’re expected to be on call all the time and be responsive to emails, there could be some question as to whether the provision has been breached,” Karimjee says.

Another area where he can foresee litigation over after-hours smartphone use at some point in the future concerns time on call.

Karimjee explains the Bill 148 amendments to the ESA provide for minimum on-call pay in certain circumstances.

"Will the need to be available to respond to email and calls on a smartphone trigger this obligation?

“The three-hour rules talk about presenting yourself for work, but in this day and age, given the technology that is available, what happens if you have an employee who is expected to respond to emails or phone calls. If they get one and spend 15 minutes dealing with it, is that captured by the three-hour rule?” Karimjee wonders. “I don’t believe the law is clear on this as it stands.”

This story is part of an occasional series in which Toronto employment lawyer Kumail Karimjee explores the legal issues raised by mobile technology in the workplace.

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