Employer policies and further research called for

In 2017-2018, the Labour Program of Employment and Social Development Canada conducted a comprehensive review of Part III of the Canada Labour Code, sets out minimum labour standards for workplaces in the federally regulated private sector. That review led to a series of amendments, but five key issues were not resolved, and so the Minister of Employment, Workforce Development and Labour appointed an independent Expert Panel on Modern Federal Labour Standards to consult, research, and provide advice to the Minister. The December 2019 report is the culmination of the Expert Panel’s work and contains the results of the consultations, research, and recommendations. Of particular interest is the discussion there of a potential “right to disconnect”. As the Report of the Expert Panel on Modern Federal Labour Standards puts it:

In today’s world of work, mobile technologies and other factors, such as alternative work arrangements, the 24/7 economy, gig work and organizational cultures have blurred the boundaries between what it means to be "at work" and not "at work". In this context, should limits be set on work-related e-communications outside of work hours in the federally regulated private sector? If so, how should this be done and why?

The Expert Panel did not recommend that there be, at this time, a statutory right to disconnect, but did conclude, in Chapter 4: Disconnecting form work-related e-communications outside of work hours, that serious issues were raised and needed to be resolved.

“Part III of the Code does not currently directly address limiting work-related e-communications outside of regular working hours in this way, and no provinces or territories provide such a legal right.” The Expert Panel acknowledges that the concept of what it means to be “at work” has been blurred by mobile technologies and globalization, and that with “the transition from an industrial society to a service-based society, and the increasing accessibility of information and communication technology tools, work is no longer always tied to a physical location.”

There were many consideration that the played into Expert Panel’s recommendation. These included recognition of the necessity of a “flexible workforce that is available around the clock” to remain competitive in some cases, and awareness that some industries and organizations have a workplace culture of constant availability and connectivity. In addition, they took account of the fact that there can be some trade-off involved, in the sense that despite the potential downsides of constant connectivity from the point of view of an employee, it can also accommodate time zone difference, give employees control over their work hours, and facilitate “on-call” work. They noted as well that such connectivity created equity issues, and therefore some scope for tension: women statistically take on more non-work-related activities outside of working hours, which can limit their ability to respond to requests outside of those hours, which in turn could have a negative impact on competitiveness, promotions, and so on.

The Report notes that workers increasingly use technology to set up flexible work arrangements to create a more satisfactory work-life balance, but on the other hand, “engaging in e-communications for work purposes outside of work hours has been associated with poorer employee recovery from work and increased work—life interreference, high levels of burnout and increased health impairments”.

The Expert Panel discusses some of the difficulties with France’s “right to disconnect”, including that it does not have a legal definition of “right to disconnect” which has led to ambiguity in what that right actually entails. Germany adopted a self-regulatory model that leads to more “tailor-made solutions” and provides the example of the German Labour Ministry coming to an agreement with its own works council to ban communication with staff outside work hours, except in emergencies, and protects employees from reprisals for not responding to such communications. Volkswagen implemented a policy that stops Blackberry servers from sending emails to employees covered by a collective bargaining agreement form half an hour after standards hours until half an hour before they begin work.

Three general themes were at the centre of the Expert’s panel: flexibility, compensation, and management. Ultimately, the Expert Panel did not recommend implementing a statutory right to disconnect at this time. They concluded:

The Panel believes that a statutory right to disconnect would currently be difficult to operationalize and enforce. Part III already provides entitlement to overtime for services required by the employer beyond certain hours of work. Part III also provides some restrictions around the duration of work. These provisions, in part, help to provide a framework to address the negative aspects of this issue. Nevertheless, the Code does not define what is deemed work. Given the blurring of boundaries described above, the absence of such a definition generates ambiguity about what work is for employers, employees and labour standards officers responsible for enforcing labour standards.

Nonetheless the Report acknowledged that a real issue arose, and therefore made four recommendations: 1) that the employers subject to Part III consult with their employees or their representatives and issue policy statements on the issue of disconnecting; 2) that a statutory definition of “deemed work” be included in Part III; 3) that Part III provide a right to compensation or time off in lieu for employees required to remain available for potential demands from their employer; and, 4) that further research be done on the issue.