BC Business
E-mails outside work | BCBusinessMobile devices have made it easy to send and receive e-mails outside the regular work day. But is the price of our 24/7 work culture too high?
While in Germany a few weeks ago, I came across an interesting story in the news. A union representing some of Volkswagen’s 191,000 employees negotiated a deal whereby management agreed to stop routing e-mails 30 minutes after the end of employees’ shifts, and not resume until 30 minutes before the beginning of their next shift.
That a union, typically concerned with entitlement to overtime pay for its employees, was behind these new rules speaks to the importance Volkswagen’s employees place on burn out and the separation of work and leisure time.
In Canada, there are few examples of employers taking a leadership role in limiting e-mail delivery during what otherwise would be an employee’s rest time. Dick McFadden, then Deputy Minister of Citizenship and Immigration, was a notable exception. In January 2008, he issued rules within his department restricting the use of BlackBerrys after 7 p.m. and on weekends. When interviewed a year later about the success of the new guidelines, McFadden reported while he faced a lot of criticism the rules didn’t reflect the reality of conducting business in a global economy, employees appreciated the rules, and there was a major drop in after-hours e-mails. He noted, however, that those levels where creeping up again.
Arguably, Provincial Employment Standards legislation, with its rules on maximum hours of work per day and overtime pay, is also out of sync with business’ needs and 21st century technology. While each jurisdiction has its own exceptions for managerial employees, IT employees and professionals such as lawyers and accountants, most workplaces are required to pay overtime wages if employees work outside their prescribed hours of work. This is true, even if employees are not specifically asked to work overtime as Employment Standards tribunals put the onus on employers to disprove overtime claims. So, if an employer allows an employee to stay at work, or provides remote access after-hours and has no rules respecting the use of such devices, the employer will be deemed to have requested the employee work longer hours.
To make matters worse, employers are also expected to maintain accurate records of hours worked by employees. Without good records, employees’ recollection of extra hours worked, together with some records of e-mails sent outside regular work hours, could be sufficient to support their overtime claims.
Whether your employees are already using the technologies that permit work-related communication outside of regular work hours, or if you are considering acquiring such technology for your employees, it’s worth considering the following to minimize liability for overtime costs, not to mention employee burn out:
Short of adopting Volkswagen’s approach, it takes leadership from senior management to counteract 24/7 work expectations implied simply from sending and responding to e-mails during evenings and weekends.
Whether you are motivated by a desire to avoid employee burn out or potential overtime pay claims, examining what your company is doing (or not doing) to protect the separation between work and “rest” time makes good business sense.
This blog is written by Nicole Byres of Clark Wilson LLP and made available by BCBusiness to provide general information on employment law, and is not a substitute for competent legal advice from a lawyer licensed to practice in your jurisdiction. Neither the reading of this blog nor the sending of unsolicited comments or emails creates a lawyer-client relationship with the writer or Clark Wilson LLP.