Written by John Craig and Justin P’ng
Should employees have the right to “disconnect” from work? It is a thoughtful question in our hyper-connected world where we are always plugged in, the economy continues to tilt towards digitalization and service industries, and the dawning of 5G connectivity is posed to transform the online economy and potentially society itself. A growing focus on the importance of work-life balance also makes this a timely issue for discussion.
This very question was considered by the Expert Panel on Modern Federal Labour Standards, which was established by the Government of Canada in February 2019 to broadly study reforms to the Canada Labour Code. The Panel’s Report was published in June 2019 and made publicly available in December 2019. Amongst its sweeping recommendations was the following sober conclusion: that there not be a statutory right to disconnect at this time.
On the whole, we believe the Panel was right. To understand why, one has to examine the Panel’s reasons, and consider how a statutory right to disconnect has fared in practice.
The French Example
In France, the notoriously voluminous Code du travail received another addition in 2017: a right to disconnect. Under the law, French companies with more than 50 employees are obligated to negotiate a policy with their employees that regulates work-related electronic communications beyond working hours. If no agreement is negotiated, then the company must engage in consultations with employee representatives and publish a charter that specifies what the right to disconnect entails.
Problematically, the “right to disconnect” is not actually defined, nor is it backed up by specific enforcement mechanisms or penalties. In other words, the law is heavy on aspiration and light on transformation. It may ultimately have greater normative (rather than regulatory) value, although it certainly can lead to enforceable workplace standards. In one 2018 case, France’s Court de Cassation ruled that a former French employee’s right to disconnect was violated because his number was circulated so that he could be contacted if problems arose. Despite the employee not actually being required to field calls outside of working hours, he was found to be entitled to unpaid wages for his time spent “on call”, amounting to 60,000 euros.
The Code du travail indeed expressly recognizes that an employee is entitled to compensation during the “astreinte” period, when an employee is away from the workplace but must remain available to perform work at the employer’s will. If nothing else, the right to disconnect may be useful for supporting such claims, whether or not a policy or charter actually demarcates cut-off times. Given the vagueness of the law, however, time will tell whether it can otherwise lead to a culture shift or meaningful changes in the connectivity of French workers.
A Right to Disconnect in Canada
During its consultation with stakeholders, the Panel grappled with the most significant challenge of implementing a right to disconnect: flexible work arrangements. As the Panel noted, many employers described the 9-5 workday as a “thing of the past”. At the very least, it is a shrinking artefact from a pre-Internet era when workers disconnected from work merely by the act of leaving their desk or workstation. As these lines have blurred with every technological leap, workplaces and workers increasingly follow their own rhythm outside the 8-hour mould. That presents significant logistical challenges to implementing a meaningful right to disconnect across the board.
It is not just white-collar professionals who work based on an unconventional workday. The Panel considered how the trucking sector operates on a 24/7 basis, with truckers managing their own time and potentially receiving dispatches at any hour. To disconnect would actually be materially risky, as updates about route hazards or route changes are communicated 24/7. Similar considerations apply to those who work in the global industries of trade, financial services and transportation, where work travels across time zones and continents.
Then there is the matter of worker independence and flexibility. Perhaps the biggest shortcoming of a right to disconnect is its impact on the ability of workers to customize their workday. For a variety of reasons, workers may wish to distribute their workday into the “off-hours” period. Some are motivated to leave early to pick up their kids from school and spend family time with them before picking up where they left off at work. Others may want to restructure their workday in order to attend classes to upgrade their professional skills. Some companies may be deterred from offering this flexibility to workers if they were subject to a stringent right to disconnect.
Beyond the potentially unintended consequences, the Panel determined that implementing a right to disconnect would be “difficult to operationalize and enforce”. They accepted that the sheer number of exceptions and tailoring that would be needed across multiple industries, sectors, and situations would turn the law into an unwieldly hydra-like mechanism.
Workers themselves may also choose to resist a ban on off-hours communication, putting their employers in the awkward position of not being directly responsible for a violation. A study held by Robert Half Canada revealed that only 58 percent of leaders in the IT industry believed they could adhere to an off-hours email ban, and 48 percent of office workers acknowledged they would still be tempted to check their emails.While more sophisticated employers may have the technological means of preventing employees from using their communication systems during off-hours, this places an unfair burden on smaller employers without such capabilities.
The Panel instead determined that the Canada Labour Code should follow its provincial counterparts in including a definition of “deemed work” to capture, in essence, the “astreinte” period. In a way, this is an alternative blanket solution that is actually workable across diverse industries, workplaces and occupations. By making such time compensable and subject to the usual conditions on working hours and overtime, whether the calculation follows the French approach or an as-worked basis, the employer is subject to the cost of imposing such expectations and can organize their workplace accordingly. Workers are also protected from being shortchanged for their time spent working off-hours, and flexible work arrangements can easily accommodate this statutory protection.
This is a more practical solution than the overall French approach, which is nonetheless admirable for attempting to reinforce a normative foundation for the protection of work-life balance. Such a foundation may indeed provide the basis to support similar regulations and reforms, as well as being an aspirational standard for collective bargaining. But ultimately it is an amorphous law that is more principled than practical in light of the issues identified by the Panel.
As the Panel discovered in examining this issue, it would be more meaningful to accommodate the reality of how the workday is structured, rather than attempting to put the genie back in the bottle by imposing an arbitrary disconnection period. Their recommendation is consistent with promoting work-life balance for workers. Indeed, it would promote this objective by maintaining a material distinction between “work” and “life”, and ensuring that all such time is properly accounted for. That is a reform that would benefit workers far more than being told when to unplug.
“New Research: Majority of Canadian Tech Leaders Confident They Can Disconnect From Emails, Employees Less Convinced” Robert Half Canada(February 26, 2019), online: <https://www.roberthalf.ca/en/new-research-majority-of-canadian-tech-leaders-confident-they-can-disconnect-from-emails-employees>.
John Craig & Justin P’ng, “A Right to Disconnect: A Visionary Reform or Disconnected From Reality?” Canadian Law of Work Forum (February 28 2020): http://lawofwork.ca/a-right-to-disconnect-a-visionary-reform-or-disconnected-from-reality/