By Allen Smith, J.D.
California’s “right to disconnect” bill would harm businesses and employees if it is enacted, legal experts say. SHRM opposes the bill.
The bill, AB 2751, would require an employer to establish a workplace policy that provides employees the right to disconnect from communications from the employer during nonworking hours, said Chris Micheli, a founding partner of Snodgrass & Micheli in Sacramento, Calif.
The bill would grant a right for employees to ignore communications outside of work hours except for in an emergency or for scheduling. Under the bill, “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. “Scheduling” is defined as a change to a schedule that will occur within 24 hours.
An employee would be able to file a complaint of a pattern of violation of the legislation, which would be three or more documented instances of violating the right to disconnect.
“There is little doubt that there are situations in which a limited number of employers abuse their ability to contact employees during nonworking time, but this legislation attempts to address the issue in a manner that would unnecessarily tie employers’ hands and adversely affect business in California,” said Joe Beachboard, an attorney with Beachboard Consulting Group in Palos Verdes, Calif. Employees also would be harmed, other attorneys added.
Compliance Uncertainty
The definition of “emergency” is problematic, Beachboard said, and “fails to recognize the many critical situations in which an employer may genuinely need to contact an employee.” The bill does not state how much an issue must disrupt business operations for an employer to be able to contact an employee outside of work hours, said Eric Akira Tate, an attorney with Morrison Foerster in San Francisco.
“Many minor disruptions may have huge impacts on employers but may not amount to the disruption needed to be exempt from the bill’s forbearance on off-the-clock communications,” Tate said.
In addition, limiting scheduling communications to a tight 24-hour window might impede an employer’s ability to arrange for work coverage, said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego and government affairs director for CalSHRM.
The 24-hour scheduling limitation “could negatively impact the contacted employee, who might have appreciated 48 hours’ notice,” he said.
Sector and Role Sensitivity
What constitutes an emergency may differ markedly between industries. For example, forbidding employers from contacting employees off-hours could be catastrophic in the medical field, Tate said.
Under the bill, a clinic might not be able to contact a nurse to confirm an unconscious patient’s medical history if the patient’s life is not in immediate peril, even if the information would be helpful to their care, he said.
Operational Agility
AB 2751 could also hurt businesses’ ability to serve customers. Suppose a small business owner runs a computer repair shop. One employee fixes some parts of a customer’s computer during work hours and then clocks out. But the employee forgets to report which parts of the computer they fixed and which need further work. The employee was the only person to work on the computer, and the only way to confirm the status of the computer is to contact the employee.
Without AB 2751, the solution to this minor issue would be straightforward: Send the employee a short text, email, or similar message and ask, Tate said. “The enactment of AB 2751 would turn this molehill—which happens every day, multiple times a day, in every industry—into a proverbial mountain,” he said.
Under AB 2751, the employer would be left with three options, Tate said:
- Pay another employee to check the computer again to determine which parts were fixed, which would not only be inefficient but ultimately could force the employer to charge higher prices for the service.
- Delay getting the computer to the customer, and ask the employee when they are back on the clock.
- Break the law and contact the employee.
“Any of these options would harm the business owner,” Tate said.
Work Hours Flexibility
AB 2751 might restrict the natural flow of work that occasionally necessitates overtime, according to SHRM. Tate said the bill also raises the question of whether an employer or work team could “cc” an off-work team member on an email with information that is important for the off-work team member to know when they return to work.
“The statute presumably can be read to say no, the off-work team member cannot be cc’d unless there was an emergency as defined in the bill,” Tate said. “While well-intentioned, this bill arguably takes the wrong approach,” Kalt said. California already requires that nonexempt employees be paid for all hours worked, so communications during nonworking hours become working hours. “This financial implication should dissuade any nonemergency communications.”
Administrative Considerations
The bill would raise several administrative challenges. It would require a written agreement, and setting up these agreements could be burdensome. Because the bill precludes off-hour employer communications but has a vague definition of employer, “HR will then have to notify presumably at least the supervisor but potentially others about the periods of time when each employee is able to ignore work communications,” Kalt said.
International Complexities
In addition, because many employers have multiple locations and are in different time zones, this may require spreading the word broadly throughout the company about an employee’s nonworking hours.
AB 2751 ignores a key element of today’s 21st-century workplace: It’s global, Tate said.
“Companies operate and teams are comprised of workers across the world, in different time zones, which require flexibility, including checking an email or taking a call outside of the normal workday,” he said.
