Can – and Should – Employers “Ban” After-Hours Work Email?

(First published May 2014. Updated January 2017.)

Do you expect your employees to read and respond to work-related email after hours or on weekends? Or do you encourage your staff to “disconnect” once they leave the office?

The topic of after-hours work email is again in the news after France introduced a new law that grants employees in the country the legal right to ignore work emails outside of typical working hours. The new employment law requires French companies with more than 50 employees to begin drawing up policies with their workers about limiting work-related technology usage outside the office.

While no similar law exists in Canada, some individual employers (such as PR firm Edelman Toronto) have adopted policies that limit work-related email communication after quitting time.

Is a similar approach right for your business? What are the advantages and disadvantages to implementing such a policy? Some things to consider before adopting (or rejecting) an after-hours work email policy…

Potential for Employee Overtime Claims

Strange as it may sound, emailing about work-related matters after hours could very well entitle an employee to overtime pay.

Under BC employment standards laws, an employee (with some specific, limited exceptions) may work a maximum of 8 hours a day or 40 hours a week before being entitled to overtime pay. Work is very broadly defined under the BC Employment Standards Act (ESA) as “the labour or services an employee performs for an employer whether in the employee’s residence or elsewhere”, and would certainly include work-related email correspondence.

An employer must pay an employee overtime wages if the employer requires, or directly or indirectly allows, the employee to work more than 8 hours a day or 40 hours a week (unless the employee is working under an averaging agreement, a concept we will cover in a future blog post). This means that even if the employer does not require but simply “allows” an employee to send afterhours work email, the employer will be liable to pay overtime.

One strategy to reduce overtime claims for after-work emailing is to adopt an overtime policy that requires employees to obtain authorization before working extra hours (including via email). Remember, however, that regardless of whether there is an overtime policy in the workplace, if an employer “directly or indirectly” allows an employee to work beyond the 8 and 40 hour limits, that employer is liable to pay overtime wages. The BC Employment Standards Tribunal has indicated that if an employer does not wish employees to work overtime hours, the employer must not only order them not to work overtime, but must also supervise and record their hours of work to ensure that no overtime hours are being worked. Following practices like these may not prevent overtime claims, but should at least strengthen your position should you have to defend against them.

Keep in mind that managers are exempt from the hours of work and overtime requirements of the ESA, such that they will not be entitled to claim overtime for afterhours emails. The Employment Standards Regulation defines a manager as a person whose principal employment responsibilities consist of supervising and/or directing human or other resources, or a person employed as an executive.

Work / Life Balance and Employee Productivity

Another consideration is the possibility that your employees may burn out if they do not have the opportunity to fully disconnect from work. While the phrase “work/life balance” may be overused, and even outdated, there is evidence that taking a break from work increases not only employee wellness, but also productivity and job performance. And as one Washington Post blogger pointed out, more hours of work do not necessarily translate into more work done – in fact, the opposite has been shown to be true. Thus, encouraging your workers to truly “punch out” at the end of the day can benefit employee and employer alike.

Of course, there are some industries or professions where afterhours emails are the norm, or even a necessity. Practically speaking, it may not work for your organization or your customers to impose time limits on email and other communication, particularly if your business has a global reach. If this is the case, it may make sense to discuss the issue with your staff and, with their input, develop a policy outlining your (reasonable) expectations for work email. One solution may be to allow employees to shorten their time in the office on a particular day if it is anticipated that they will be spending their evening working online.

Are you considering adopting an email or other policy for your business? Contact us!


NOT LEGAL ADVICE. Information made available on the Kent Employment Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.

Facebooktwittergoogle_pluslinkedin

, , , ,