Assembly member wants to legislate ‘right to disconnect’

A proposed bill requiring California workplaces to establish a “right to disconnect” for employees who are off the clock could set the stage for a huge increase in workplace litigation and push start-ups to set up shop out of state, an employment attorney warned.

The proposal, introduced by Assemblymember Matt Haney, D-San Francisco as AB 2751, would amend the California Labor Code to compel employers, public and private, to establish a policy allowing employees to ignore out of hours work communication. Employers engaging in “a pattern of violation of the bill’s provisions” – defined as three or more instances of violation – would be subject to a fine of “not less than $100.” The proposed change would still allow employers to contact their employees in an emergency.

Koray J. Bulut, a partner in Goodwin Procter LLP’s employment practice, wrote that while the proposal was well-intentioned, “imposing legal restrictions on employers is not the solution.”

“If a company has terrible work-life balance, the market will correct that problem or workers who dislike the intrusion into their personal time will seek employment elsewhere. Adopting workplace laws such as this only motivates fast-paced start-ups to consider hiring outside of the state. This law does address the need for companies to meet customer or client needs, which may require responsiveness outside of work hours,” Bulut wrote in an email.

He added that the changes, in particular drafting ambiguity about what constituted an emergency and a violation, would “substantially increase employment disputes and litigation.”

“Is it [an] anti-retaliation law protecting employees to exercise their right to “ignore communications from the employer during non-working hours” or does the employer violate the statute by sending the email outside of work hours,” Bulut wrote. “Subpart (b) suggests the unlawful conduct would be disciplining an employee who elects to ignore the communication. But the definition of ‘pattern of violation’ suggests that sending email to the employee outside of work hours constitutes a violation of the right to disconnect.”

But J. Bernard Alexander III, a partner at employment law specialists Alexander, Morriso + Fehr LLP, welcomed the proposal, writing that the culture around employer-employee communications “needs to change.”

“Currently, workers are tethered to their cellular devices and expected to respond to the needs of their employer at all hours of the day, on a few minutes notice. Employees are essentially constantly accessible, progressively lessening the separation between work and personal life. The less power the employee has, the less ability to stop invasion contact from the employer,” Alexander wrote in an email.

The key to the legislation’s success would be how it limited retaliation from employers, he added.

“The key here is that this should prevent employers from retaliating against employees who do not respond to employers during non-work hours or employees who attempt to place limits on communications outside normal business hours. By formalizing the issue, employees will have more protections,” he wrote.

If passed, the law would make California the first jurisdiction in the U.S. to place limitations on work-related communication outside of regular working hours.

Haney’s effort follows successful codification of the right to disconnect in overseas jurisdictions. France legislated a right to disconnect in 2017, though the concept was born following a court decision a decade earlier. Spain, Greece and Italy followed. Australia passed provisions enshrining the right to disconnect in its employment code in February, with the rules set to take effect later this year.

A key issue with placing limitations on work communication in today’s business environment is the fact that knowledge workers often don’t experience the same physical disconnection with their workplace, particularly during the shift to working from home following the COV ID-19 pandemic and the ensuing blurring of work schedules. Opponents say that these legislative efforts do little to clarify these boundaries and may result in employees losing autonomy over their schedules.

Alexander wrote that AB 2751 appeared to have been drafted in a manner that was intended to allay these fears.

“There appears to be a lot of flexibility in how employers can establish this policy, so the workday does not necessarily need to be 9-5. Obviously, this is different depending on whether the worker is exempt or non-exempt,” he wrote.

Though it appeared the law would cover both exempt and non-exempt employees, it was the latter who would benefit most, Alexander posited. Exempt employees, including attorneys, were conditioned to the idea that they would need to work beyond a set schedule, he added.

Bulut argued that far from offering employees clarity, the proposal opened a Pandora’s box about how exempt workers were defined. “Having employers establish set work hours for exempt employees creates risks. There are ample published cases, where a court notes that one of the hallmarks of an exempt employee is the lack of established work hours or schedule. To force employers to set work hours and not disturb exempt employees outside of those hours creates ambiguity with exempt status,” he wrote.

“California law already requires non-exempt employees to be paid for time spent outside of their normal work hours. To impose set work hours on exempt employees, ignores the very nature of the exempt classification. Exempt employees’ hours are not tracked. They do not have set work hours, but rather are paid the same weekly salary whether they have to work a 60-hour week before a product launch or work a 20-hour week when work is slow,” Bulut added.

Haney’s office was contacted for comment but had not responded to questions at the time of publishing.