I had not seen or heard from my friend Meggan since she accepted her new job until a week ago when she sent me a text message inviting me to go see a movie.
When I checked the time stamp on the text message she had sent, it read 1:30 am. When we met for the movie, I asked Meggan why she was up at 1:30 am, and she revealed that, like many members of Generation Y, she had become a “22-22-22” employee.
Born between 1981 and 2000, the 12 million Canadian members of Generation Y have accepted working hours and conditions that have coined a new catch phrase in the workplace – “22-22-22” – meaning a 22-year-old willing to work 22-hour days for $22,000 a year.
Although the exact figures may differ from workplace to workplace (especially the 22-hour workday), the trend for members of Generation Y is to work more hours, at different locations, through different means, and often for less money.
While these arrangements may help the 22-22-22 employee get a foothold in the workplace and gain experience in their chosen fields, there are important employment law implications that should be addressed by both employees and employers. Here is a snapshot:
Health and safety in the workplace
The 22-22-22 arrangement may result in increased claims for benefits for fatigue, disability or psychological harm associated with working long hours, with little pay and little security.
While volunteers and apprentices are not covered by the Employment Standards Act, 2000 (“ESA”) or the worker’s compensation regime in Ontario, employers still have general responsibility for the health and safety of volunteers and apprentices, visiting or “helping out” in their workplaces under the Occupational Health and Safety Act.
Overtime and digital labour
The ESA sets limits to the number of hours employees can work, which the 22-22-22 employee (working the “22-hour” workday) easily surpasses, creating entitlement to overtime. With certain exceptions such as doctors, lawyers, mushroom growers (seriously!), this entitlement cannot be bypassed by providing salaries or giving an employee the title of “manager.”
What may also add to the overtime claim of the 22-22-22 employee is the extent to which hours spent on emails, blog or Facebook posts, and tweets will constitute “work” for the purpose of compensation and overtime. It is not yet clear, unless it has been included in the employment contract, if social media work is compensable.
How to cope with the 22-22-22 arrangement
Clear employment contract
It is important to set out (either at the beginning of the relationship or through amendments) the framework for the employment relationship, with a particular emphasis on what is included and excluded (and not compensable) under the employment contract.
As a best practice, digital labour, and to what extent a 22-22-22 employee is responsible and compensated for it, should be addressed as part of the employment contract. With the reliance on digital devices, it may now be suitable to have this conversation when negotiating the terms of an employment contract.
Whether or not digital labour is included in an employment contract, a 22-22-22 employee should keep clear records of digital activity connected to their employment in order to seek compensation for this work.
Unless exempted from overtime hour provisions under the ESA, employees should request payment for overtime hours or take advantage of time off in lieu of overtime pay. It is important to also keep in mind that an employer cannot intimidate, fire, suspend or otherwise punish a 22-22-22 employee if he or she refuses to work more than the maximum daily (eight hours) and weekly hours (48 hours) of work. If this happens, a 22-22-22 employee can file a complaint with the Ministry of Labour or seek legal advice with respect to their options.
Where the hours and demands of the job, coupled with obligations outside of work, are having an effect on psychological and physical well-being, the 22-22-22 employee may want to canvass the potential for accommodation (i.e., flex time; working from home, etc.).
Keep in mind, however, that accommodation requests should be based on a legitimate need rather than preferences, and may also require supporting documentation. If the request for accommodation is denied, seek out the reason(s), and determine if they are based on legitimate grounds. Keeping in mind that the accommodation process is a two-way street, which requires that the employer and employee work together, will allow this process to be more successful for both parties.
Constructive dismissal claim
If the employee (unwillingly) becomes a 22-22-22 employee over time, and it is through the employer’s modification (or addition) of duties, the 22-22-22 employee may have grounds to refuse the additional work, and treat the employment contract as if it is at an end.
Remedy for constructive dismissal (i.e., reasonable notice payment) exists only if the employer’s actions significantly and qualitatively changes the employment relationship (i.e., substantial change(s) in pay, duties, hours). This is a major step, and should not be taken lightly and without legal advice.
With permanent employment becoming more elusive, 22-22-22 employment arrangements may be an acceptable option for many young employees. However, ignoring one’s rights for a job, without at least having an awareness and/or conversation about one’s legal entitlements and options, may not be the foundation on which to develop an entire career.
Disclaimer: This article is for general discussion purposes only and should not be regarded as legal advice.
Photo credit: Adeyjordan