Friday nights the neighbours and I like to gather in the garage to have a few beers and tell a few stories. More often than not, at least one conversation starts with “Hey Cake, you’re a lawyer can you tell me…” The inquiry this week came from a buddy who was on his phone for the whole first half of the evening. It was late, the kids were all in bed, and the street lights were on. He was taking calls and sending emails between sips, but it didn’t look like he was having a good time. The question, “Is it illegal for my boss to keep at me even after I have punched out for the day?” I didn’t know the answer but had a few cold OV left and figured I could come up with something before the night was done.
The answer is yes, almost, maybe, depending on the size of the employer you work for. The relationship between the employer and the employee is governed by multiple sets of rules and regulations. One of those sets is the Employment Standards Act. The ESA is a regulatory act, much like the Highway Traffic Act, or the Liquor License and Control Act. The ESA is enforced by the Ministry of Labour, Training and Skills Development. Late in 2021, the Government of Ontario amended the ESA, which now requires employees to have a “disconnect from work” policy. The policy must be written and shared with the employees by June of this year. The ESA describes “disconnecting from work” as engaging in work-related communications, emails, voice and video calls. Essentially “disconnecting from work” can be defined as “being free from the performance of work”. There are exempted industries but the bottom line is it looks like requiring employees to answer emails after hours could lead to enforcement action.
What that all means is still undecided as enforcement of these policies has not come into play yet. Interpretation of the wording of the policies will be key to determining if an employer is in violation. Violating the ESA will not lead to a criminal record, but could lead to fines, probation, or even jail time. While technology and the evolving global nature of business have made employers far more connected to employees than ever before, I wonder what folks like Musk, Bezos, O’Leary, or Wolfe Herd would say to putting the work away at 5 pm and not picking it up again until the start of business at 9 am the next day. It will also pose some interesting questions relating to the balance between an employee’s right to “disconnect” and the employer’s right to further the interests of the business venture. Once the enforcement team rolls in, I look forward to litigating these types of cases. If you are an employer who falls victim to this industry paralyzing legislation, call the team at CCD Law. We will be happy to defend your right to advance your interests while contributing to the economic security of our province.