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:
THEINTRUSION 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 ramications 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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APPEALVOLUME 25
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 briey examining the development of protective legislation in the
British Columbia Employment Standards Act (“ESA”)
5
and the Canada Labour Code
(“CLC”),6 with a specic 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 insucient 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 cically, 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 specic 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 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.
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 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.
12Ibid, s 3 6(1)(a )-( b).
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