From Ringing to Impinging: The Intrusion of Technology into the Employment Relationship

• Author: Katie Dakus
• Position: A third-year law student at the University of Victoria and will begin articling in July 2020 at Lidstone & Company in Vancouver
• Pages: 27-42

APPEALVOLUME 25

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ARTICLE

FROM RINGING TO IMPINGING:

THEINTRUSION OF TECHNOLOGY INTO

THE EMPLOYMENT RELATIONSHIP

Katie Dakus *

CITED: (2020) 25 Appeal 27

ABSTRACT

Technology has fundamentally altered how individuals contact and connect with each

other. is has troubling ramications for the employment sector, as employees may

receive electronic communications from their employer outside of their scheduled work

hours. Employees may feel various professional or societal pressures to answer these

communications, resulting in the employee engaging in unpaid labour. is paper

asks if Canada should seek to regulate after-hours communications between employers

and employees by conducting an international analysis of approaches taken by other

jurisdictions. ree potential methods of reform are examined, and a recommendation

is made for Canada to implement a “right to disc onnect.” e right to disconnect mea ns

that employees cannot be penalized for ignoring communications received after-hours.

e right to disconnect could be legislated through the Employment Standards Act and

the Canada Labour Code to provide additiona l protections to employees.

INTRODUCTION

Technology has fundamenta lly altered how society functions by connecting individuals

regardless of ti me or place. As new technologies, such as smartphones and social media ,

become more prevalent and essential for modern life, concerns arise that individuals

are becoming increasingly incapable of disconnecting from them, and therefore from

each other. is constant level of connectivity is especially troubling with regard to the

employer-employee relationship, as it distorts the separation of professional work hours

and personal time.1 If an employer sends a n e-mail or a text message to an employee af ter

hours, is this ti me compensable? If not, should it be compensable? Canada has been slow

to answer these questions, especially when compared to various other jurisdictions. For

example, France has ena cted legislation to limit an employer’s ability to contact employees

outside of working hours,2 and A merican courts have witnes sed a rise in lawsuits in which

workers claim additional wages for time spent communicating outside of work hours.3

* Katie Dakus is a third-year law st udent at the University of Vic toria and will begin articling in Jul y

2020 at Lidstone & Company in Vancouver. She thanks Ju lia Tikhonova and the Appeal Editorial

Board for their contributi ons to this paper.

1 Openyemi Akanbi, “Policing Work Boundaries o n the Cloud” (2018) 127 Yale LJ 637 at 638.

2 Tanya Marcum, Elizabeth A C ameron & Luke Versweyveld, “Never o th e Clock: The Legal

Implications of Employees’ Af ter Hours Work” (2018) 69 Lab LJ 73 at 78.

3 Ibid at 74.

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While Canadians were recently asked to complete a national government survey

4

on

this topic, there has been no i ndication to date as to whether the government intends to

further pursue t his avenue.

is paper begins by briey examining the development of protective legislation in the

British Columbia Employment Standards Act (“ESA”)

5

and the Canada Labour Code

(“CLC”),6 with a specic focus on overtime and on-call provisions. Next, this paper

examines the rising prevalence and pervasiveness of smart technology in Canadian

society and how thi s technology erodes boundaries betwe en an employee’s work life and

private life. is eroding boundary is discussed through the evaluation of international

jurisprudence, including by examining how American court systems are handling the

intrusion of technology into the employment sphere. is paper argues that Canada’s

response to the increasi ng use of technology to contact employees outside of working hours

has been inadequate a nd that the existing legislat ive regime is insucient to regulate the

use of technology outside the workplace. is paper concludes with proposals for three

methods of reform that would provide nec essary protections to vul nerable employees who

fall withi n the scope of the ESA or CLC.

I. THE EMPLOYMENT STANDARDS ACT AND THE CANADA

LABOUR CODE

e inherent power imbalance be tween employers and employees raises the concern th at

employees may not be adequately compensated for their l abour.7 erefore, legislation has

been enacted in Can ada over the past century to protect workers’ rights. Spe cically, these

statutes have created minimum standards that employers must follow when scheduling

employees for shifts. e Canada Labour Code governs federal workers, suc h as employees

of banks and ra ilroads, and stipulates that a fed eral employee’s standard work week must

not exceed eight hours in a day and 40 hours in a week.8 If an employer requires an

employee to work in excess of these standards, they must pay for each additional hour

at a premium wage.9 is premium wage, known as overtime, must be a minimum of

one-and-a-half times the employee’s normal wage.10 Provincial legislation echoes these

provisions, and British Columbia’s Employment Standards Act adds that if an employee

exceeds 12 consecutive hours of work, any subsequent hours must be paid at double the

normal wage.11 e ESA also outlines rest periods to which an employer must adhere.

Each employee must receive 32 consecutive hours f ree of work each week, and any hours

worked in contravention of this section must be paid at an overtime rate.

12

Barring

very specic exceptions, these statutes prohibit overtime work from occurring without

additional compensation.

e Employment Standards Act also dictate s how remuneration will occur if an employee

is on-call, and notes t hat this remuneration is subject to the overtime reg ulations specied

4 Canada, Employment and Social Development Canada, What We Heard: Modernizing Federal

Labour Standards (30 August 2018) [What We Heard] at 10.

5 RSBC 1996, c 113 [ESA].

6 RSC 1985, c L-2 [CLC].

7 What We Heard, supra note 4.

8 CLC, supra note 6 at s 169(1)(a).

9 Ibid, s 174.

10Ibid.

11ESA, sup ra note 5 at s 35(1). There are many professions that fall outside the pur view of the ESA

and are therefore unentitl ed to its benets (e.g., independ ent contractors) The scope of this

paper is limited to those who qu alify for the protections w ithin the ESA or the CLC.

12Ibid, s 3 6(1)(a )-( b).