Everyone appreciates a break from work. Assemblymember Matt Haney recently introduced AB 2751, which would give all employees, except those covered by a valid collective bargaining agreement, the right to ignore communications from their employer during nonworking hours. This is what the bill says and three reasons I believe this well-intentioned bill is deeply flawed.
Proposed ‘right to disconnect’
AB 2751 would require employers to establish a “right to disconnect” policy recognizing their employees’ right “to ignore communications from the employer during nonworking hours,” except as specified. An employer would have to enter a written agreement with each employee setting nonworking hours.
An employer could “ an employee during nonworking hours for an emergency or for scheduling.” “Emergency” is defined as “an unforeseen situation that threatens an employee, customer, or the public; disrupts or shuts down operations; or causes physical or environmental damage.”
An employee could file a complaint with the labor commissioner “for a pattern of violation” of the measure, for which an employer would be fined at least $100.
The bill apparently would not bar an employer from sending employees communications during nonworking hours; a right to ignore a message is not a right not to be sent a message. Only an employer’s pattern of punishing an employee for ignoring such communications would violate the measure.
The bill is unworkable
How would an employee know whether a communication from an employer concerns scheduling or an emergency unless the employee opens the message or answers the phone? As the California Chamber of Commerce asked in a letter to Haney opposing the bill, “what is the point of allowing these exceptions if all emails can be ignored"> (new Image()).src = 'https://capi.connatix.com/tr/si?token=8b64ff35-2d21-481e-88ae-8562dded85bd&cid=1ffe15d6-eb53-11e9-b4d2-06948452ae1a'; cnx.cmd.push( function() { cnx( { playerId: "8b64ff35-2d21-481e-88ae-8562dded85bd" } ).render( "11982501ceb44352bd1e95848c612274" ); } );
What kind of punishment, when it becomes a pattern, would violate the measure? One California court has said “a mere offensive utterance or even a pattern of social slights” generally is not legally actionable.
Would an employer offend the statute by chastising an employee repeatedly for disregarding after-hours communications? How many instances of such “punishment” would draw a fine?
The bill says an employee has no right to ignore an off-hours communication from an employer concerning an unforeseen emergency. But how much of a threat must an employee, customer, or the public be facing to qualify as an “emergency”? How unforeseeable must the situation be?
It is no answer to say courts will clarify these on a case-by-case basis. As one San Diego-based California Court of Appeal has written, courts are loath to assume the “role of personnel officers, becoming entangled in every conceivable form of employee job dissatisfaction.”
The bill is one-size-fits-all
The bill covers: (1) all employees, exempt and non-exempt; (2) all employers, established giants and budding startups; and (3) all industries, retailers and professional services.
Certain salaried and commissioned employees are exempt from overtime pay rules that cover non-exempt employees. In exchange for working when and as long as necessary to complete the job, exempt employees generally earn substantially more than non-exempt employees. As the U.S. Supreme Court has observed, exempt employees generally perform a kind of work that is “difficult to standardize to any time frame.” AB 2751 would upend that bargain.
The measure would be especially ill-suited for exempt employees working at tech startups, even as it covers only communications directly “from the employer.” Langley Steinert, chair of Car Gurus and former co-founder of TripAdvisor, recently posted on LinkedIn: “Startups are not 9-5 jobs, and you need to make sure everyone (including yourself [as founder]) is willing to field an email or phone call at 9 p.m. or on weekends. Your customers don’t stop after 5 p.m. or on weekdays so you and your employees should not as well.”
Non-exempt employees already are entitled to pay for OT overtime work
An employer must pay non-exempt employees who work more than eight hours in a day or 40 hours in a week pay for cutting into time such employees otherwise would have to themselves.
Non-exempt on-call employees must be paid for the time they spend responding to after-hour requests and, if their personal activities are sharply restricted while on call, perhaps the time spent waiting for a call. A non-exempt employee affirmatively required or expected to respond to off-hour work-related communications may be entitled to compensation for that work even when not formally on call.
Respecting employees’ down time
Employer handbooks may say non-exempt employees need not respond to work-related communications outside normal hours unless the message clearly indicates otherwise. Off-hour communications from managers may include a similar disclaimer.
Opposing this bill, the Wall Street Journal recently editorialized: “Some bosses no doubt exploit employees in their off-hours, but then those bosses tend to lose the best workers.”
Law, then, is not the only motivating force at work. Paid vacation time, widely offered without being legally mandated, also provides a therapeutic disconnection from work. A daily right to disconnect shouldn’t be legally mandated either.
Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at [email protected].
