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 possible 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, there 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.

Employer’s View

Companies need to be mindful of the potential repercussions of this new law. It may seem benign to expect an employee to answer an email on the weekend but such an apparently innocent request could lead to trouble. Clearly excessive off hours demands will definitely lead to an assortment of legal headaches. Keep in mind that terminations contrary to the Employment Standards Act as a reprisal or otherwise can lead to reinstatement applications and a ticking time clock for lost income claims to the date of the hearing.

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

Whether you be employer or employee, this issue of unscheduled work requests is important to understand. This is a question which requires solid legal advice. For advice on this issue from either side, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

[1] Part VII.2