September 29, 2016

picture1Technology has connected the world, and completely changed the way we work. Along with providing a number of useful tools to make things easier, the dawn of the email age has provided an avenue for people to be “connected” at all times. Having access to email on smartphones, while handy, is often accompanied by the temptation to be available 24/7, with the result that the workday may not end when you leave the office (and may never end). The sheer volume of email, and the expectation of instant response, has become a significant social issue, causing many organizations to question how to deal with it. In a recent headline-making decision, the Peel Region District School Board has attempted to abolish or at least reduce email on weekends, discouraging staff from checking email and advising supervisors not to send email to their staff over the weekend.

The Board has specified that unless it is an emergency, supervisors are not to email or expect a response to an email from their direct reports on the weekend. The idea is to reduce stress in a profession where there is a tremendous amount of afterhours work. Often, the ability to access emails at any time comes with a stated expectation to be available constantly; other times, the pressure itself comes from a self-created need to check and respond to emails at all times. As apps and methods of accessing emails grow in number, should other employers seek to follow the Peel Region Board’s lead and ban emails on weekends? What are the legal connotations of employees being available 24/7?

Terming the current culture as an “email epidemic”, as stated in a previous article by Natalie MacDonald, who believes this is a step in the right direction and expects that other employers may adopt measures to control the expectations employees feel outside of work hours. Employers have been giving out Blackberrys “like candy” (although now it is more likely to be an iPhone or Android) without considering whether the employees in question need constant access to email. The pressure then falls upon employees when they may see an email from their boss at 9PM and feel that they have to respond or risk inhibiting their career path if they do not respond right away. The potential for liability then opens up for employers because the fact is that any time an employee responds to such an email, whether from the comfort of their home at 9 PM or on the weekend, they are performing work and may be entitled to overtime pay.

What employers may not realize when they provide round-the-clock email access is that there is underlying legal liability attached to such a system. Pursuant to the Employment Standards Act, 2000, any employee who is not a manager, supervisor, or similar position is entitled to overtime pay for hours worked in a week that exceed a total of 44 hours. Moreover, the pressure and stress from the need to be available 24/7 may translate to an employee eventually feeling overwhelmed, drained, and, in some instances, feeling like they work within a toxic environment. Gone unchecked, employers could be opening themselves up to claims for extraordinary amounts of unpaid overtime pay, as well as, in cases of excessive expectations to be available constantly, claims for harassment and poisoned work environments.

picture2Indeed, such was the case in Zorn-Smith v. Bank of Montreal. An employee was awarded not just damages for wrongful dismissal, but also extraordinary damages for the employer’s bad faith stemming from its expectation for her to be available for work well after business hours. Her employment had been terminated on the basis of poor time-management skills. The court, however, found that she had been placed under unrealistic expectations which required her to spend time and energy in the evenings and on the weekends, rather than with her family. It felt that “[a]lthough occasional long hours to cover special circumstances can arise in most jobs, long term understaffing resulting in chronic, unreasonable demands being placed on employees, especially those not in the higher-income earning echelons, is unreasonable.” The employer was held liable for causing the subsequent adjustment disorder that the employee developed due to unreasonable work demands.

We all want to give our best to the work that we do, and certainly most employers want to provide a positive, productive work environment. Work is a crucial part of a person’s identity; however, it is only one part of an employee’s life, and employers need to take steps in order to protect themselves and their employees to clarify expectations with respect to replying to email. This is a problem that will continue to evolve in the digital age, and so the best approach is to be proactive and work towards developing effective policies to regulate this issue early on. Not only will this assist in managing the workplace, but having such a system in place will in fact make you stand out as an employer who truly cares about work-life balance for their employees. Employers should put reasonable policies in place, which will vary depending upon the nature of the position. Some employees do have to be available all the time; most do not.

Employers in need of assistance with drafting these policies are welcome to contact us. Similarly, employees considering whether they may have a claim for an employer with overly unrealistic expectations for work hours and email are welcome to reach out to us for advice.


By Richa Sandill