It’s all too common: You get home from work and receive an urgent email from your boss, you’re vacationing on the beach when you get a text from the office, you’re enjoying the weekend with your family when you get a message from a supervisor. Modern technology makes it hard to disconnect, and, for many employees, blurs the line between work and nonwork hours.
What if you had a legal right not to respond to work messages when you were not working? In 2017, France, which has a working week of 35 hours, gave employees the legal right to not answer work emails or texts during designated “off” hours. A New York City Councilman, Rafael L. Espinal, Jr., proposed a similar law on March 22 of this year. The bill would make it unlawful for private employers to require employees to check and respond to emails and texts during nonwork hours unless there is an emergency. The bill requires employers to adopt a policy that sets work hours for employees, with exceptions for employees who are required to be on call 24 hours a day. The proposed law would not apply to businesses with less than 10 employees or to the government.
The bill leaves many questions unanswered, however. Federal law treats employees who receive salaries very different than those who earn an hourly wage. Businesses are required to track the time that hourly employees work and give them overtime pay if they exceed 40 hours of work per week. Salaried employees, on the other hand, are not entitled to overtime pay, nor are their employers required to track their working time. It is unclear how the law would protect salaried workers since their workweek is not limited to a set number of hours. Businesses could therefore get around the proposed law by adopting work hours that are very long.
In addition, the proposed law does not prohibit employees from voluntarily responding to messages from work. This means that, unless an email explicitly demands action by a time certain, an employee could feel pressure to respond to an email even if he or she had the right not to. The bill may not change industries where competition and professional culture mean that there is an implicit expectation that an employee will be available all the time.
Finally, the bill’s definition of an “emergency,” during which an employee would have to respond to messages no matter what, could be interpreted many different ways. The bill defines an emergency as, “a sudden and serious event, or an unforeseen change in circumstances, that calls for immediate action to avert, control or remedy harm.” What constitutes harm? How serious does it have to be? When is an event serious, and how quickly does it have to occur to be sudden? These are just some of the questions that the definition leaves open to interpretation.
Whether or not the bill passes, it reflects growing concern over the American work-life balance and technology’s ability to put employees to work even when they aren’t working. If you have any questions about how this law could impact your company, contact our office to schedule a consultation.