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The four-day work week has been generating a lot of buzz lately.

Benefits such as increased productivity, better work-life balance, and improved job satisfaction have many employers considering making the shift.

Before moving to a four-day work week, it is important for employees and employers to consider the legal implications of their decision. These implications will likely depend on how the work week is structured. For example, if the change to a four-day work week is simply one less day of work for the same compensation as a five-day work week, then there are few legal concerns. However, if the shift to a four-day work week includes a pay-reduction, or a compressed schedule where the same hours are compressed into four days, then there are important legal considerations.

Employment Standards Legislation

Several sections of the Ontario Employment Standards Act, 2000 (“ESA”) are drafted broadly enough to allow for a transition to a four-day work week, with the employee’s consent.

For example:

  • Section 17 limits a workday to 8 hours or the number of hours in a workday if the employer has established a regular workday of more than 8 hours.
  • Section 22 requires an employer to pay an employee overtime for each hour of work in excess of 44 hours in each work week or if another threshold is prescribed, that prescribed threshold.
  • Section 33 discusses vacation in terms of weeks, and states that if an employee does not take vacation in complete weeks, the number of vacation days that the employee is entitled to is based on the number of days in their regular work week, or if the employee does not have a regular work week, on the average number of days worked per week.

While these sections provide examples of language that is broad enough to move to a four-day work week, employers shifting to a four-day work week must ensure that the shift does not violate any ESA requirements.

Constructive Dismissal

For both employers and employees, it is important to review your employment contracts before shifting to a four-day work week. If an employer makes a unilateral change that substantially alters an essential term of the employment contract, the law may consider the employee to be constructively dismissed.

A constructive dismissal is when an employer has acted in such a way that the law will consider the employee terminated. An employee who has been constructively dismissed may make a claim against their employer, seeking termination entitlements.

A substantial change in work hours, or a reduction in salary could be considered a constructive dismissal. To avoid issues regarding constructive dismissals, an employer considering moving to a four-day work week should consult employees and seek their consent before making any changes. Employers should also seek legal advice before presenting these changes to employees.

Human Rights

The Ontario Human Rights Code lists several protected grounds which may be affected by a change in working hours. Human rights issues may arise, for example, where an employee is unable to work longer hours due to their family status or due to a disability.

Employers and employees should remember that employers have a duty to accommodate employees to the point of undue hardship. In the context of a four-day work week, an accommodation may include adjusting the employee’s working hours.

Conclusion

As many employers grapple with new norms in the workplace, the four-day work week is a creative way to attract and retain talent. If you, as an employer or employee, are considering a four-day work week, contact our team to discuss your rights and responsibilities.

Nelligan Law gratefully acknowledges the contribution of articling student Rhian Foley in writing this article.

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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