Know your rights: Disconnecting’s not one ‘em; at least not yet

Posted June 13, 2022
By Daniel J. Paré

CO-WRITTEN BY CHARLES SMITH

On June 2, 2022, when Ontario voters went to the polls for the province’s 43rd general election, organizations employing more than 25 workers were obligated to have put in place a written policy on disconnecting from work; the so-called ‘right to disconnect.’ 

Having received Royal Assent in December 2021, Ontario’s Working for Workers Act amended the Employment Standards Act, 2000 (ESA) to include a section that is meant to delineate clearer boundaries between owner’s time and the worker’s own time. This is no easy task in a world in which the ubiquity of digital mobile technologies has transformed and expanded both the definition of what constitutes the workplace and the identities of individual employees. 

While many have come to appreciate the flexible work arrangements digitalization affords, such convenience comes at a price. Not the least of which is the propensity to always be ‘on’ and the transforming employees into avatars, or virtual proxies, of their employers. Indeed, the distinction between owners’ time and one’s own tethered time is the new normal for countless workers. Enter, the ‘right to disconnect.’

However, the new Working for Workers Act fails to ensure any such right for workers in Ontario. Section 21 of the Act defines ‘disconnecting from work’ as meaning “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.”  In France, the right to disconnect has enjoyed statutory protection since January 2017 and obligates employers with more than 50 employees to stop encroaching on their workers personal and family lives, and legally codifies the right of employees not to check or respond to emails or to take calls when they are off duty. Similar legislation and policies having been proposed or adopted in Argentina, Belgium, Chile, Germany, Ireland, Italy, Portugal, Slovakia, and Spain.  

The guidance provided to employers by the Ontario government in late February about the new amendments was unequivocal, and contrary to what the phrase ‘right to disconnect’ denotes, the ESA:

“does not require an employer to create a new right for employees to disconnect from work and be free from the obligation to engage in work-related communications in its policies.”

In reality, the new so-called right to disconnect involves little more than Ontario employers codifying their existing practices which already must comply with existing requirements set out in the ESA regarding hours of work and eating periods, vacation with pay, public holidays, and when work is ’deemed’ to be performed.

The only requirements in the Act have nothing to do with new worker rights. The Act only requires that: 

1. the employer’s written policy “contain such information as may be prescribed,” even though no regulations have been passed under this provision;

2. the date the employers’ policy was prepared and/or the dates any changes were made be specified; and 

3. the policy be applicable to all employees (although different policies may apply to different groups of employees). 

In short, the Act says nothing about the actual content of the policies employers are now mandated to create. This has led some to suggest that in Ontario at least the so-called right to disconnect amounts to little more than a hollow promise whose principal purpose was to help cast the Ontario Progressive Conservative Party in a worker-friendly light during the lead up to the provincial election. 

There’s good reason to cynical when it comes to Conservative’s efforts at positioning themselves as being on the side of workers and, admittedly, it is still far too early to tell whether the new legislation will ultimately lead to changes in workplace cultures and practices (let alone the types of changes). What we do know is that, the boundaries between workplace/non-workplace and on/off duty have in recent years become extremely muddied and this, as our research on the freedom of expression / workplace boundary nexus has shown, is happening at a time when employers are actively seeking to impose strong disciplinary measures, including dismissal, for employee off-duty social media postings they deem contrary to their interests. 

Yet, the new legislation is silent when it comes to prescribing measures that might enable employees to shed their employer avatar/proxy identities. No new regulations are offered, let alone anything that might contribute to untethering employees from their workplaces wherever those may be physically located. For this legislation to actually protect workers, it needs to have real regulatory teeth. It cannot simply be a voluntary policy prescribed by employers, who may or may not consult with workers about the contents of the policy and how it will be enforced. Put simply, the new legislation ignores the real power imbalance between employers and employees.

Notwithstanding these real limitations, we contend the introduction of a right to disconnect, even if only just a paper ‘right’ in its current form, offers a potential entry point for workers’ advocates and unions to further mitigate the power of employers to discipline workers for off-duty conduct. In our work, we have been mapping the real-world consequences arising from the direct and indirect authority employers can, and often do, exert over the private lives of employees especially as it pertains to the right of workers to express themselves freely online in their off-duty time. The current momentum around the right to disconnect provides labour unions with a unique opportunity to directly implicate themselves in delineating clearer boundaries between work and non-work domains through the developing of collective bargaining proposals aimed at eliminating the tethering of employees’ own time/space and better protecting their off-duty expression.