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 |
APPEAL VOLUME 25
n
27
ARTICLE
FROM RINGING TO IMPINGING:
THEINTRUSION OF TECHNOLOGY INTO
THE EMPLOYMENT RELATIONSHIP
Katie Dakus *
CITED: (2020) 25 Appeal 27
ABSTRACT
Technology has fundamenta lly altered how individua ls contact and connect w ith each
other. is has troubling ra mications for the employment sec tor, as employees may
receive electronic communic ations from their employer outside of their scheduled work
hours. Employees may feel various profes sional or societal pressu res to answer the se
communications, resu lting in the employee engagi ng in unpaid labour. is pap er
asks if Ca nada should seek to regu late after-hours communicat ions between employers
and employees by conducting an intern ational analy sis of approaches taken by other
jurisdictions. ree p otential methods of reform a re examined, a nd a recommendation
is made for Canada to implement a “right to disc onnect.” e right to disconnect mea ns
that employees cannot be pena lized for ignorin g communications received a fter-hours.
e right to disconnect cou ld be legislated throug h 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 connecti ng individuals
regardless of ti me or place. As new tech nologies, such as smar tphones and social media ,
become more prevalent and essentia l for modern life, concern s arise that ind ividuals
are becoming increa singly incapable of di sconnecting from t hem, and therefore from
each other. is consta nt level of connectivity is e specially troublin g with regard to the
employer-employee relationship, as it distorts the separ ation 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 quest ions, especial ly when compared to various other juri sdictions. 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 additiona l wages for time spent commun icating 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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APPEAL VOLUME 25
While Can adians were recent ly asked to complete a national govern ment survey
4
on
this topic, there has been no i ndication to date as to whet her the government intends to
further pursue t his avenue.
is paper begins by brie y examini ng the development of protective legislation in the
British Columbi a Employment Standards Act (“ESA”)
5
and the Canada Labour Code
(“CLC” ),6 with a specic focus on over time and on-cal l provisions. Next, this pa per
examines t he rising prevalence and per vasiveness of smar t technology in Can adian
society and how thi s technology erodes boundaries betwe en an employee’s work life and
private life. is erodi ng boundary is d iscussed th rough the evalu ation of international
jurisprudence, including by e xamining how A merican cour t systems are ha ndling the
intrusion of technology into the employment sphere. is paper a rgues that Ca nada’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 insucient to regulate the
use of technology outside the workplac e. is paper concludes with proposa ls 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 cically, these
statutes have created min imum standa rds that employers must follow when scheduli ng
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 a nd 40 hours in a week.8 If an employer require s an
employee to work in excess of these sta ndards, they must p ay for each additional hour
at a premium wage.9 is premium wage , known as overtime, mu st be a minimum of
one-and-a-half times t he employee’s normal wage.10 Provincial le gislation e choes the se
provisions, and British Columbia’s Employment Standards Act adds that if a n employee
exceeds 12 consecutive hour s of work, any subsequent hours must be paid at double the
normal wage.11 e ESA also outlines rest periods to whic h 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 pa id at an overtime rate.
12
Barring
very specic except ions, these statutes prohibit overtime work f rom 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 specied
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.
10 Ibid.
11 ESA, 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 benets (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.
12 Ibid, s 3 6(1)(a )-( b).
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