The Right to Disconnect: Legal Issues You Should Consider

When a manager or employer communicates with staff outside working hours, they are sometimes uncertain what is expected of them. Are they supposed to respond immediately? Can it wait until they are at work? Will they be paid for the time they spend responding?

An employee may even, in more extreme circumstances, feel harassed because of the volume or complexity of the communications and their intrusion into their personal time.

In response to these concerns, we are seeing an increasing number of class action lawsuits claiming millions of dollars in unpaid overtime.

Some countries, and some employers, are addressing after-hours communications through initiatives such as “the right to disconnect” campaigns which give employees the right to turn off electronic devices after their workday ends.

France, renown for public employees having a 35-hour work week and 5 weeks of vacation, is one of those countries. In 2017, to address concerns about unpaid overtime, and increased employee burnout, and to protect eroding leisure time, France introduced new legislation that gave employees whose employers have 50+ employees, the right to turn off their work devices outside of working hours.

Volkswagen and Daimler have also implemented policies to prevent employees from receiving and/or responding to emails after working hours.

In August 2018, the Canadian government issued a report called “What We Heard – Modernizing Federal Labour Standards”, which included a discussion about the “the right to disconnect”. Ultimately, the right to disconnect was not included in the Code changes introduced in December 2018, although the Code now gives employees the guaranteed right to have at least 8 hours off between shifts. (This is already in the Employment Standards Act for provincially regulated employees.)

However, the discussion has not ended.

In January 2019, Employment and Social Development Canada released an issue paper called, “Disconnecting from Work-Related E-Communications Outside of Work Hours”. It sets out statistics about after-work communications, analyzed what was occurring in other organizations, and discussed the pros and cons of giving employees the right to disconnect.

In February 2019, the federal government appointed an independent expert panel to review various issues including the right to disconnect. The question they were mandated to was to consider was: “Should limits be set on work-related e-communications outside of work hours in the federally regulated private sector? If so, how should this be done and why?”

There may not be any further developments on this issue given the upcoming election. However, it is being considered more broadly across the private and public sector.

As our lives become more and more digital, and as more workplaces provide their employees with mobile devices and continue to send electronic communications after working hours, the right to disconnect discussion will likely be part of an ongoing conversation around expectations for work and the importance of “down time” for psychological well-being, and for productivity at work.

To avoid unintended overtime claims and harassment complaints and to protect the psychological health and safety of employees, it is worth reviewing your policies. You should consider:

• whether your policies and practices comply with minimum standards regarding hours of work and overtime, and
• whether to create some kind of “right to disconnect” policy, or at least some parameters around expectations for monitoring devices outside business hours, which may vary depending on the employee’s role and level within the organization and their eligibility for overtime

Technology has brought with it many wonderful capabilities but as with anything, it needs to be managed carefully and consciously.