3 Top 2023 Labour & Employment Law Trends for Employers to Watch
Published:
27 février 2023
Author(s):
2022 left important lasting implications for employers. With 2023 here, it’s time to look ahead to key issues that will affect employers in the coming year. Notably, these issues share a major driver: remote and hybrid work models. Here’s a peek at three top labour and employment law trends for employers to watch in 2023.
1. Quelling Quiet Quitting
The concept of quiet quitting – where an employee stays in their job but stops going above and beyond, doing only what’s expressly required of them – has been getting a lot of attention on social media and beyond. It’s becoming a real issue for employers as employees put greater emphasis on the “life” side of the work-life equation. And employers are trying to understand what, if anything, they can do about it. The good news is that there are tools available to employers to tackle quiet quitting, including:
Written Employment Contracts. A well-drafted and properly implemented written employment contract that includes specific terms addressing work duties, working hours and compensation will make rights, responsibilities and expectations clear to employees, and could give you the right to terminate if employees breach those terms.
Incentive Compensation. Offering employees incentive compensation, such as a bonus, paid time off or other rewards, for reaching performance benchmarks, could motivate employees to make the extra effort you’re looking for – but it’s critical to carefully craft incentive plans or you risk continued liability for them even after the employment relationship ends.
Job Satisfaction. While less a legal than an engagement issue, think about how you can increase job satisfaction. One example is the place of work: remote work might make your employees feel disconnected; however, a lack of remote work options might cause unhappiness amongst employees. Both can lead to quiet quitting. Typically, employers have the right to dictate where an employee works. So consider the model that will work for your employees – and for your business.
Progressive Discipline. Employers do have the right to manage the workplace, but they’re only entitled to expect satisfactory – not perfect – employee performance. Only when an employee’s performance falls below that threshold is the employer entitled to progressively discipline them for poor performance, and ultimately, terminate their employment for cause. But employers always have the option of terminating employment without cause, provided you give the employee the notice or pay in lieu of notice to which they’re entitled.
2. Demands to Disconnect
Employee calls for greater flexibility, and cost savings for employers, have resulted in remote and hybrid work arrangements staying in place post-pandemic – and with that, growing employee demands for a “right to disconnect”. The “right to disconnect” is generally about employees not engaging in work-related communications outside of working hours. To date, Ontario is the only Canadian jurisdiction with “disconnecting from work” legislation. Yet all employers with Canadian employees are wise to stay plugged into the right to disconnect:
Be Prepared. Indications are that some other Canadian jurisdictions are currently considering right to disconnect legislation (including Prince Edward Island, Quebec and the federal government) and more could follow. Employers in all jurisdictions should prepare for what could be coming down the pike.
Ontario Compliance. It’s obvious that Ontario employers with Ontario employees must comply with Ontario’s disconnecting from work legislation. However, employers based in another country, province or territory that have employees physically working in Ontario must also likely comply with Ontario’s disconnecting from work legislation in relation to those employees.
Discretionary Disconnection. Even if not required by law to do so, employers can choose to implement a voluntary “disconnecting from work” policy as an employee retention and recruitment tool. As a result of COVID-19, many employers have transitioned to a remote work or a hybrid model, resulting in a blurring of the line between home life and work life. When competition for talent is high, a (well-drafted and properly implemented) voluntary “disconnecting from work” policy signals to both current and prospective employees that an employer is willing to assist employees with balancing their home and work lives.
3. More Employee Monitoring
Now that remote or hybrid work arrangements are here to stay for many employers, more are investigating their options to engage in monitoring employees generally – and remote workers specifically.
Rationale. There are many reasons employers are interested in monitoring employees, especially remote workers, such as:
- Helping to identify when they have a “quiet quitter” on their hands, and otherwise assessing productivity.
- Identifying “time theft” by remote employees. For example, on January 11, 2023, the B.C. Civil Resolution Tribunal upheld the for-cause termination of a remote employee in Besse v. Reach CPA Inc. based on the data provided by a time-tracking program on the employee’s work laptop indicating 50.76 hours in an approximately one-month time frame that the employee reported on her timesheets – but didn’t spend on work-related tasks.
- Assisting them to meet their statutory obligations. For example, employment standards laws typically require employers to keep certain records of hours worked, including for the purpose of meeting their overtime pay obligations.
Legal Compliance. But employers interested in monitoring employees also have many legal considerations to take into account, including:
- Federal and provincial privacy laws.
- The Criminal Code of Canada and the Radiocommunication Act.
- Jurisdiction-specific laws respecting electronic monitoring of employees. For example, in 2022, Ontario became the first and only province or territory to pass legislation to amend the Ontario Employment Standards Act to specifically require certain employers have a written policy disclosing that the employer electronically monitors employees and describing how and in what circumstances they do so. Employers with Ontario employees must likely comply with this requirement in relation to those employees. And, like in the area of disconnecting from work, it’s possible that other provinces and territories could pursue similar legislation in the future.
Legal Risks. Employers that don’t take care in implementing and using employee monitoring techniques face legal risks, including wrongful dismissal claims or grievances, privacy complaints, and a negative impact on employee morale. The keys to mitigating those risks:
- Even if there’s no legislation requiring it, let employees know that you’ll be monitoring them.
- Have – and follow – a policy.
- Use the least intrusive means of monitoring to achieve your reasonable purposes.
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper to discuss how you can prepare for and respond to quiet quitting, the right to disconnect and employee monitoring – or any employment issues you face – in your workplace.
