Employer and Employee Disagree About Right to Disconnect

In France, the right to disconnect was made law on January 1, 2017, “requiring employers to have clear policies in place regarding when employees engage in workplace communication outside of the office and when on vacation.” This law is because of a French Supreme Court Case in 2001 that “held that “the employee is under no obligation either to accept working at home or to bring there his files and working tools”. In 2004, this principle was confirmed again by the French Supreme Court which added in this case, “the fact that [the employee] was not reachable on his cell phone outside working hours cannot be considered as misconduct.”

(Source: Labor Chamber of the Cour de Cassation, October 2, 2001 n°99-42.727; Labor Chamber of the Cour de Cassation, February 17, 2004 n°01-45.889.)

Since France’s law about the right to disconnect became public, this right is gaining popularity around the world because of the concerns related to unpaid overtime, and excess workload and stress that is burning out employees who are working beyond the standard hours of work (on their free time and rest periods). People are calling out for a better work balance, and since employers are not proactive at making this happen, proponents say the law must kick in and make it happen. Due to the changing nature of work and the availability of technologies that allow employees to work anywhere in the world, on any device and at any time, additional stress is placed upon workers which upsets their work-life balance.

New research by Robert Half Technology confirms that Canadian employees disagree about the right to disconnect; 58 percent of technology leaders say they could adhere to an email ban, but 43 percent of workers don’t think their current manager would stick to it. Nearly half of workers would be tempted to check their inbox after hours.

This disagreement is reflected in the recent results from a consultation from the Federal government, the What We Heard – Modernizing Federal Labour Standards report. This report summarized the views heard during the consultation that the government will work with to modernize the Canada Labour Code. The federal government is proposing additional changes to the Canada Labour Code such as the “right to disconnect”, which will allow federally regulated employees not to answer calls, messages and emails after work hours.

The results of the report showed a split between employer and labour groups over whether the federal government should follow suit and set better rules for workers in federally regulated industries; one message was clear from the report, Canadian employees want more work-life balance! One of the issues addressed in the report was interested stakeholders views on the government’s plan to provide a statutory right to disconnect.

On Page 10 of the What We Heard – Modernizing Federal Labour Standards report, it states that:

“93% of respondents stated that employees should have the right to refuse to respond to work-related emails, phone calls or messages outside working hours, and 79% stated that employers should have policies to limit the use of work-related technology outside of working hours — labour organizations and advocacy groups told the federal government “that as workloads become more intense, employees need time to rest outside of working hours. They said that responding to emails and phone calls impacts the quality of family and personal time, acts as a source of stress and reduces the effectiveness of rest time.” Moreover, “labour groups argued that a legal right to turn off work devices, or workplace policies to limit the use of work-related devices when not at the office, would improve rest and not bite into family time.”

However, on Page 11 of the same report, the employers and employer organizations have an entirely different view,

“that being available and on-call is sometimes a requirement in workplaces with continuous operations, such as those that are national and international and run on a 24/7 schedule.” They said “work had evolved away from the traditional “9-to-5”, and that it is a well-established labour relations principle that determining job duties is a fundamental management right.” Also, “some referred to the government’s commitment to flexible work arrangements and noted that, under such arrangements, employees will choose to remain connected outside of work. Of the survey respondents who said employees should not have a right to disconnect, 27% said it was because business does not stop at the end of the workday.”

However, despite this report, the federal government has not yet tabled legislation towards embedding the right to disconnect in employment standards legislation, but has indicated that the matter requires further study and has undertaken new consultation until June 30, 2019, to see whether limits should be set on work-related electronic communications outside of work hours (commonly referred to as the “right to disconnect”) Disconnecting from work-related e-communications outside of work hours – Issue paper.

On March 22, 2018, a private member’s Bill in Quebec also tried to introduce a statutory right to disconnect, but treated it as a health and safety issue. Bill n°1097: Right-to-Disconnect Act was introduced in the National Assembly to ensure that employee rest periods are respected by requiring employers to adopt an after-hours disconnection policy. However, that Bill did not go any further.

Should employees have a statutory right to disconnect without fear of reprisal?

It will always be an issue of what is best for employees v. what is in the best interest of the employers business. Since the bargaining power of the employer is stronger and the employer usually believes “it is their fundamental right to manage”, including employee work hours, there will never be a work-life balance that favours the well-being of employees. The idea that we do not have 9- to- 5 work environments is not a reason to abuse that concept and expect employees never need to stop work for their well-being and those of their families. Being available 24 hours a day does not make for efficient or smart work.

Therefore, there is a need for a statutory right to disconnect, to allow employees to refuse answering work- related emails, calls or messages in an effort to prevent the risk of employee burnout, mental health issues (stress) from uncontrolled workload and work hours and potential unpaid claims for overtime work outside an employee’s regular work hours. Allowing employees to walk away from anything work related is essential to improving employee work performance and productivity.