Employment & Labour

Questions linger about the 'right to disconnect' from work

By AdvocateDaily.com Staff

The federal government’s pending legislation to give employees the right to unplug from work-related email after hours sounds good in theory but may not be practical in some professions, says Vaughan labour and employment lawyer Arthur Zeilikman.

Zeilikman, principal of Zeilikman Law, says changes to federal labour laws only impact those who fall within the scope of the legislation, such as those working in federally regulated sectors such as telecommunications or railways.

“So it’s really around 900,000 people or so,” he tells AdvocateDaily.com.

If the legislation were to be applied, he says, Ontario's Employment Standards Act (ESA) or other provincial legislation would cover those employed outside the federal sector.

Canada isn’t alone in proposing such “right to disconnect” laws. A New York City councillor proposed one, while France banned after-hours email, claiming the “electronic leash” was causing stress for employees.

As it stands now, Zeilikman says a regular employee who is entitled to overtime could make a case that answering emails and taking and making calls after work hours constitutes overtime and that they should be paid under the ESA, which is separate and distinct from any federal labour or employment legislation.

“Professionals, however, are different,” he says. “Take lawyers. We’re known to be cyborgs in our attachment to our mobile phones. However, we’re exempt from many of these types of legislation. We have a fiduciary responsibility to our clients, and we have to meet industry and market expectations. It comes down to the contract with the firm you work for and with the client.”

Managers might also be expected to respond to emails and messages, says Zeilikman.

“People have the right to disconnect, but sometimes it’s necessary to keep working,” he says. “Not all jobs are 9 to 5 but there has to be a balance.”

It also comes down to timing, Zeilikman says. An email at 7 p.m. asking for a piece of information or clarification for a presentation the following morning isn’t as intrusive as a phone call at 3 a.m. from an office in a different time zone demanding extensive details.

Different people have different work habits, Zeilikman adds, with some preferring to read, respond, write and send email in clusters — once in the morning, once just before lunch, then mid-afternoon and end of the day.

“It’s how they organize their time,” he says. “However, I do think we need to disconnect because mental health is very important.”

“You have to wonder how people practised law 30 years ago before email,” says Zeilikman. “They dictated letters, then approved them and sent them out. It was a slow process. Today everything is instant.”

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