The old idea that work ends when you walk out the door is irrelevant to most modern employees. Even those who work fixed shifts know the pain and frustration of receiving a text or call from a manager asking you to work on your day off. The pandemic further blurred the lines between work and home as employees suddenly had to work from home.
The new Ontario Right to Disconnect Law was created to answer this but has confused many employers and employees. This has led to questions about what it is, what an employee is entitled to, or even if an employee can be contacted outside of work hours. In turn, this uncertainty has created risks for employers and employees. The lawyers at De Bousquet Professional Corporation have put together this handing FAQ about the law based on common questions we have received.
Question #1: Can my employer still contact me outside of work hours?
YES! While the law is styled as the “Right to Disconnect,” it only requires an Employer with over 25 employees to have a written policy and to provide a copy of this policy to all employees. It is not a prohibition on your employer from calling, texting, or emailing you outside work hours.
Question #2: Am I excluded from the right to disconnect policies?
NO! It applies to every employee, from grocery clerks to CEO.
The law has two contradictory requirements regarding its application. The written policy must apply to all employees, including managers and executives. However, it also allows for a “one rule for me, a different rule for you” approach allowing different categories of employees to have different sets of rules. So it is entirely legal for the CEO to decide that they cannot be ever bothered after 5:00 pm on workdays, but you have to answer weekend emails.
Question #3: Does this benefit me as an employee?
YES! Words are power. Before this, there was almost nothing setting out the rules for an employer contacting an employee. Now the expectations and duties of everyone involved need to be set out in writing. It is no longer a ‘quick favour for your boss,’ but a written part of the terms of your employment. That policy can be used against your employer.
Question #4: Can my employer put in anything they want in the policies?
NO! The fact there are no requirements for the right to disconnect policies does not remove all other requirements. The Employment Standards Act, 2000 and Human Rights Code still apply. Just like every policy, it cannot discriminate on any protected ground.
Question #5: Can I get compensation for being contacted outside work hours?
YES! No matter the policy, every employee is entitled to overtime and more. The law is extremely clear. If you work extra hours, even without prior written consent from your employer, you are entitled to those hours paid as overtime. If you spend 2 hours every weekend responding to emails from your boss, you should be paid for those 2 hours. It does not matter if you are hourly or salary. Every employee is entitled to overtime unless they fall into a few narrowly defined categories, which are determined not by job title but what you actually do on a day-to-day basis.
Question #6: Can my employer punish me for asking questions about these rights?
NO! This is now part of the ESA. If your employer punishes you in any way for asking about your rights or asking it to comply with the law, that is called a reprisal. If a company has a policy but is not following it, you may be able to bring a Civil Case or Ministry of Labour Complaint.
Question #7: I have concerns about how my employer is dealing with the right to disconnect. What should I do?
CONTACT US! If your company has a “disconnect from work” policy and you feel like you are not getting compensated properly for your extra work, contact De Bousquet PC.