The new bill providing a “right to disconnect” from office emails and calls can protect those workers who are exploited by being called around the clock, not paid the requisite legal overtime or “call-in pay” but too fearful for their jobs to refuse. I understand the reason for this initiative – some employees are asked to work beyond their capacity.
But what about sales employees, lawyers, senior executives and even (particularly) politicians, whose jobs require them to be often available 24–7 to ensure they do not miss urgent issues, foreign sales opportunities or client demands? In my own firm, lawyers check their phones a few times during each weekend to ensure there is no urgent client demands or a client strike breaking out somewhere in the country.
What about sales employees who must be available for calls respecting business or sales opportunities across Canada, India, Europe or wherever they do business, at hours reflecting those time zones.
Will employees who have set their own hours to meet their other commitments while working from home, who can change those hours even day to day, suddenly be forced instead to work 9–5?
Will factories be unable to call off-shift employees to cope with a machine malfunction or to replace employees who unexpectedly call in sick? And will employees who relish extra overtime pay now be unable to collect it? Or small and new businesses who must be nimble to meet competition and whose hours are whatever they must be, become victims of this legislation?
If these fears were realized, we would quickly have two workforces within each company: those who choose to disengage and those who want the additional work. The latter will obtain the extra overtime and be remembered when it is time for promotions. Somewhat like it always has been – but more so.
I was concerned this legislation would motivate employers to rely less on employees and more on independent contractors to avoid the legislation.
These are the fears I have heard from employer clients, executives and the business community in the few days since this legislation was announced.
But the legislation has not been fully revealed and I did not know whether my apprehensions were justified.
I spoke to Monte McNaughton, Ontario’s Minister of Labour, Training and Skills Development, to ask about the underlying specifics.
Happily, the business community and employees’ concerns have been dramatically overblown and the legislation is more sensible than I had feared.
What the legislation requires is simply transparency – disclosure obligations, so that workers would be told, upon hiring and during employment, what hours they would be expected to be available for work.
Those hours will be a function of the individual workplace and its needs, and entirely up to each employer, as long as they are transparent. And if there are emergencies requiring employees to be contacted even during the hours ostensibly disconnected, that too will be accommodated by the legislation. Employers who require employees to be available in off hours and are prepared to pay the requisite overtime for that, simply must make that clear so employees can choose whether or not to take that employment.
The other portion of the legislation abolishes non-competition clauses in employment contracts, preventing workers from moving to a competitor.
It does not prohibit non-solicitation covenants, preventing employees from soliciting their former customers or coworkers. But even non-competition covenants have been abused, with even some fast food workers being asked to sign such clauses. Although entirely unenforceable among junior employees, such employees are unlikely to pay for legal counsel to find that out, will assume the clauses are enforceable and feel bound not to leave their positions for better opportunities.
Another current problem is the increasing number of non-competition covenants arising among digital and IT employees. They are invariably also unenforceable at law already, but the fact of these contracts allows the previous employer to tie them, and their new employer, up in litigation thereby making these employees potentially unhireable, detrimental both to them and the broader workforce and community.
Although there are real problems with non-competition clauses, they can, in my view, be useful for those in sales and for senior executives.
If they cannot be protected by such a clause, many companies would be unwilling to bring in and invest in new employees, let alone permit them to develop close relationships with their major customers, only to make it worthwhile and economic for a competitor to offer them higher wages and bring over those customers.
Similarly, in hiring an executive, a company would be reluctant to entrust them with knowledge of its corporate opportunities or to develop close relationships in the marketplace if they risked that employee moving with those contacts and knowledge to its major competitor.
I expressed those concerns as well to Minister McNaughton and was advised that the thrust of the legislation is to eliminate these encumbrances for the majority of workers. However, clauses for intellectual property and non-solicitation will still be permitted while the final regulations may also exempt C-suite executives who could still be asked to sign non-compete agreements.
If C-suite senior executives are carved out, then this legislation is simply passing into law what the courts essentially are already doing. And it will prevent employees from having to spend considerable legal fees, even if guaranteed success, or – as I discussed in my column about David Neeleman, decide the game is not worth the candle – decline the new opportunity and have our country relatively impoverished by employment immobility.
BY HOWARD LEVITT
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada.
THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-concerns-about-ontarios-proposed-right-to-disconnect-law-are-overblown
