The Right to Unplug

Written on behalf of Peter McSherry
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The newly amended Employment Standards Act may have created a context in which an employee may legally be able to disconnect their phone from the demands of the office.

There is some precedent for this. European countries such as France passed a law allowing employees to turn off their devices when not officially at work. This law gives the green light to have a life, and ignore work-related e-mails and other forms of electronic communication in this context. There are rumours that the Federal Government is considering such a law. Approximately 11% of Ontario companies work in federally regulated businesses.

The new law does not create such an affirmative right on its face, but arguably its provisions may lead to this conclusion.

The New Bill 148

One of the interesting parts of this new law deals with scheduling and on-call work.[1] In essence, this law states that generally if the employer demands that the employee work on an unscheduled day, it must provide at least 3 hours pay and at least 96 hours of advance notice. Absent this notice, the employee can refuse the work assignment.

One issue which may arise is whether an email, phone call or text message is a request to work under the statute. What else could this possibly be? It is highly probable that a court or Employment Standards adjudicator would side with the employee’s view on this point.

In addition, rank and file employees are given the right to be off work at least 24 hours each week, and at least 48 hours free from work every 2 weeks.

Is there a Higher Level Exception?

Supervisors or managers usually are exempt from such matters as overtime pay and hours of work issues. However, they are not exempt from this new provision.

This being said, the new statute apparently does not prevent supervisors and managers from being on-call around the clock, seven days a week. The two sections appear to be in conflict, which means that likely the more specific section dealing with scheduling will prevail, but this remains to be seen.

Law is Evolving

It remains to be seen how this new law will be interpreted. Stay tuned here for further case law interpretations.

Employees’ Perspective

Employees must know their rights and how and when to assert them. This is a good example of acting with care and precision to assert your legal rights. The first step is to be aware of your legal rights.

Get Advice and Know Your Rights

Get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation

[1] Part VII.2