Tethered to work: It could be illegal to force contact

TORONTO — There’s growing chatter in North America about adopting right-to-disconnect laws to free workers from being tethered to their phones around the clock.

But some labour experts say that while the digital demands of work in the 21st century need to be openly discussed, rigid regulations and fines may not be the solution.

Last week, a New York councillor proposed making it illegal to force employees to access “workrelated electronic communications” from home, with some exceptions including emergency situations. Companies would have to draft written policies spelling out the hours of work and time off, and employers would not be allowed to threaten penalties against anyone who refused to check their email or work-related social networks off-hours.

Quebec Solidaire’s Gabriel Nadeau-Dubois also tabled a private member’s bill in the Quebec national assembly last week that aims to “ensure that employee rest periods are respected by requiring employers to adopt an after-hours disconnection policy.” The proposal calls for fines between $1,000 to $30,000 for companies that refuse to draft a proper policy, or reassess it annually to ensure it remains up-to-date and effective.

“For my parents’ generation, when you were leaving the office, you were actually leaving the office,” Nadeau-Dubois, 27, said last week.

“It’s not true for my generation anymore. When you leave work, you still have to work, because you have emails from your boss or colleague. The separation between professional life and private life is disappearing.”

The federal government has also signalled its interest in exploring the right-to-disconnect trend, which made headlines last year when France enacted its own legislation to help protect the free time of its workforce.

As part of its public consultation earlier this year on how “labour standards should be updated to better reflect and respond to the new reality” of evolving workplaces, Employment and Social Development Canada released an online survey that included several questions about right-to-disconnect policies.

One of the questions asked whether right-to-disconnect regulations should be one of the government’s “most important” labour issues.

“It’s always a good thing for parties to discuss their working conditions together,” says labour and employment lawyer Katherine Poirier.

“But she cautions that “overregulating and imposing fines for employers is not always the right way to solve a situation.

“The problem is there is no cookie-cutter solution in this area,” says Poirier, a partner with Borden Ladner Gervais LLP.

“Implementing a policy and having to respect it is good, because both parties will be able to discuss what’s agreeable according to their own area of activity. Whereas trying to implement legislation that will govern (all workers) single-handedly could lead to a nightmare.”

In addition to the demands of their ever-growing email inbox, many employees are now also communicating within Slack, a social network for businesses that now boasts nine million weekly active users across 100 countries.

It eschews the formality of email in favour of a looser instant-messaging style approach, a strategy that has not surprisingly also been pushed by Facebook with its fee-based Workplace service, used by corporate giants including Walmart, Starbucks and Heineken.

Poirier expects many companies would argue that existing labour laws and court rulings already adequately protect employees from getting forced into working outside the office. She points to a 2005 Quebec Court of Appeal case that made “a very strong statement” that employees could not be compelled to extend their work day into their home.

“(The court found) the human right to privacy and to the sanctity of the home may not allow an employer to force you to work from there,” Poirier says, “so the employer could contact you to schedule you, for example, but to force you to work from there would be an invasion of privacy.

“That was before the social media and cellphone use we see now. We have seen a lot of grievances since then, but not as precise as this. It’s going to be a very challenging issue in the future.”

There are many business leaders who are cognizant of the “benefits of disconnecting” and aren’t opposed to discouraging emailing from home, says Julie McCarthy, a professor of organizational behaviour at the University of Toronto’s Rotman School of Management.

“For many people they’re in a state of what we call ‘continuous partial attention’ where there’s so many things going on and we’re responding to so many things that we’re never completely just focused on one thing. This could be really detrimental to our well-being, our physical and emotional well-being, but also to our performance on the job,” says McCarthy.

“If we have people who are at work, but they’re experiencing exhaustion and potentially burnout, then they’re not really performing at levels that we might want to see. So it’s only in the organization’s best interests that they ensure that people are rejuvenated.”

Social psychologist Elizabeth Dunn conducted a small-scale exploratory study out of the University of British Columbia that found people were less stressed when they were asked to check their email a few times a day versus being told to do so frequently.

While she emphasized that more strenuous research would be needed to make any conclusive findings, she says “it does suggest that being constantly tethered to our technology during times when we’re trying to be with our friends and family does undermine some of the benefits we would otherwise derive from that sort of quality time.”