By Eliab Taïrou, from our Labour and Employment Law Practice Group
December 9, 2019 —
It goes without saying that we live in a world that has become “hyper-connected”, as we are constantly staring at our cell phones or other electronic devices. Many employees find themselves, outside of office hours, constantly responding to emails and requests from their employer, colleagues or clients.
While this connectivity brings flexibility to the employee, it also comes at a cost, namely that there is no longer a clear boundary between work and rest. Without an escape from work, the employee’s personal life may be affected. There is also the issue of increased stress levels, potential burnout and other mental health disorders, which would also have an impact on employee performance, productivity and occupational health and safety. On the other hand, this new reality has been shaped by globalization and communication with multiple time zones, as well as by the uninterrupted nature of certain industries.
As a result, it has become increasingly common for managers, supervisors and employers to contact employees via email, text message or even social media after leaving the workplace. This culture of continuous work could even be considered a personal and public safety issue, as many employees admit having answered their work-related emails while driving.
The right to disconnect
It is in this context that the “right to disconnect” has emerged, and is currently being debated and developed in several jurisdictions. This right to disconnect would recognize the possibility for an employee not to respond to any work-related communication outside of working hours. This may even include a prohibition of contacting, via an email to his attention or otherwise, an employee outside of working hours.
France, through the El Khomri law that came into force on January 1, 2017, was a pioneer in this field as the first country to adopt legislation recognizing the right to disconnect. As part of improving the “quality of life at work”, employers of more than 50 employees are therefore obliged to negotiate the terms of the right to disconnect with their employees, as well as to set up mechanisms to regulate the use of electronic devices.
In July 2018, the Court of Cassation, the highest court in France, confirmed a decision condemning the British company Rentokil Initial, to pay a little over €60,000 as a penalty payment, i.e. an availability allowance, to a branch manager who had to remain available at all times, ready to intervene if necessary. While the decision was based on facts prior to the adoption of the El Khomri law, it was part of the evolution of the right to disconnect, affirming the court’s recognition of such a right and its underlying principles.
Italy, Spain and the Philippines have followed suit by adopting legislation recognizing the right to disconnect and drawing a clear line between work hours and personal time.
Germany, for its part, has decided to adopt a model of self-regulation adapted to individual or industrial needs. For several years, Germany has demonstrated an awareness of the implications of hyperconnectivity through self-regulation among major employers, such as Volkswagen, Daimler AG, Puma and Deutsche Telekom, all of which have adopted policies or reached an agreement with certain employees concerning the right to disconnect. For example, since 2011, in application of a collective agreement, Volkswagen has programmed its servers to suspend the transmission of emails to certain categories of employees between 6:15 p.m. and 7 a.m. the next day. Similarly, since 2014, Daimler AG has implemented a policy allowing an employee to activate a function so that any email sent to him while he is on vacation is automatically deleted and a notification is sent to the sender referring him to another employee if necessary.
In the same vein, the German Ministry of Labour has adopted a policy in recent years to restrict communications to employees outside working hours, except in cases of emergency, therefore sending a message to industries to do the same. Overall, Germany is committed to productivity and efficiency during working hours, thus adopting the order, “work hard, play hard”.
Finally, other countries are debating the issue, such as South Korea, a hyper-connected society, Belgium and the United States. In March 2018, a New York City councillor proposed the adoption of a bill to amend the New York City Charter and Administrative Code in order to recognize the right of private sector employees to disconnect, as well as to impose sanctions in the form of fines in the event of non-compliance.
A look at Quebec and Canada
In Quebec, the Québec Solidaire party introduced Bill 1097 regarding the right to disconnect in the National Assembly in 2018. This Bill included an obligation for certain employers to establish a disconnection policy outside working hours, subject to approval by the Commission des normes, de l’équité, de la santé et de la sécurité du travail. In the event of non-compliance, the employer would be subject to penalties. This Bill did not get unanimous approval, some claiming that the Act respecting labour standards already provides for aspects of this right to disconnect, such as the right to refuse to work beyond a certain number of overtime daily hours or the right to benefit from rest periods. For the time being, there have not been any developments concerning this Bill.
Throughout the rest of Canada, the right to disconnect is one of five issues being considered by the Expert Panel on Modern Federal Labour Standards, composed of seven experts, including academics, private sector representatives and an Aboriginal representative, with considerable experience in labour policy, law and economics. This committee was established by the Canadian government as part of a larger project to modernize Canada’s labour standards (Canada Labour Code) in response to the economic and technological changes that have affected the world in recent years. This committee was to provide the Minister of Employment, Workforce Development and Labour with a report containing recommendations by June 30, 2019. It is interesting to note that an online survey conducted in 2017 and 2018 as part of consultations held by the Labour Program of Employment and Social Development Canada related to the modernization of federal labour standards, showed that a significant majority of respondents believe that employers should adopt policies limiting the use of technology outside of working hours. For their part, employers, in the context of an evolving work environment, argue that they should be allowed to regulate themselves and to set their own expectations concerning employee availability outside working hours.
Overall, the right to disconnect is a labour management and occupational health and safety issue that is the subject of global debate. The question is whether to allow employers to be proactive and to establish their own policies, taking into account the reality of their businesses, or to impose a framework in order to oblige employers to consider the potential mental health impacts of constant employee availability. Canada’s desired approach will be revealed in the upcoming months.