By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
Employees of public companies in New York City would be able to ignore after-hours emails and other electronic communication under a right to disconnect measure pending before the City Council.
This measure will be the subject of a public hearing Thursday, the New York Post reported earlier this week in Behind the push to let employees unplug outside normal workday:
The Right to Disconnect bill would bar firms from requiring workers to check e-mail or other electronic communications outside the normal workday unless their contracts specify otherwise [Jerri-Lynn here: My emphasis.]
A Lexology post, The City That Never Sleeps—The “Right” To Unplug, summarizes most of the measure’s key provisions:
- As written (i.e., it may be amended), the law would only apply to employers with more than ten (10) employees;
- There could be no retaliation against any employee who doesn’t respond to texts, emails, messages, or otherwise after the end of the day;
- Lost wages and benefits of $500 would accrue against any employer that punished a worker for not answering a text or e-mail outside of work hours; and
- An employer who terminates an employee for ignoring after-hours communications would have to rehire that employee and fork over $2,500 plus lost wages and pay city fines of up to $1,000.
Does this mean that employees of private New York CIty companies will soon get a reprieve from incessant after-hours emails?
Not so fast, As the Post account makes clear, the measure faces formidable business opposition – and New York City Mayor Bill DeBlasio does not support it, either.
“While bosses should, of course, be mindful of workers’ schedules, legislating e-mail hours is not our focus,” said City Hall spokesman Eric Phillips.
“The mayor is focused on paying workers fairly, getting them health care, providing earned time off and having retirement security.”
That opposition is one reason a similar measure that would apply to New York City’s municipal employees remains stalled, as the New York Post reported in Bill could ban bosses from contacting employees after work.
Further, as I emphasized above, even if the measure passes, employers could in future override it by including a contract provision requiring employees to be available, 24/ 7. Also, the New York City measure allows an exception – “in cases of emergency” – and if that term is not narrowly defined, this provision could easily be abused.
Worldwide, the Right to Disconnect Is Gaining Some Traction
A Law.com post – The ‘Do Not Disturb’ Movement Is Spreading. Are You Ready? – notes that right to disconnect measures have gained traction during the last decade across Europe, where “there has been a gradual and growing push to separate personal life from business”:
In Germany, carmaker Daimler allows its employees to use software that not only blocks work emails sent to them during vacations but also automatically deletes the notes and notifies the senders about what has happened: Imagine taking a real vacation, free from the looming specter of a clogged inbox.
“This is what people are doing for the health and safety or their workforce,” Rampenthal said. “It’s part of this idea that we can’t disconnect on our own. That our brains just can’t do it.”
Other German companies, including Volkswagen and BMW, have long had policies against contacting employees after hours. Now, the country’s lawmakers are considering making those policies law by following France’s lead and enacting so-called “right-to-disconnect” rules. The disconnect trend also has reportedly spread to Italy and the Philippines.
As a piece in The Scotsman this week makes clear, Kate Wyatt: Companies may need a policy on work emails and calls after hours, although there are no plans to introduce a legal right to disconnect in the UK, “The tide may be unstoppable.” This article discusses recent French and Irish legal decisions have resulted in awards to employees. Moreover, the EU is considering strengthening the right to disconnect, as is Canada.
And this week, Bloomberg reports in Right To Disconnect: A Bill That Wants You To Go Offline After Work that Supriya Sule, a member of India’s Parliament, has introduced a private member’s bill that would enshrine a right to disconnect from emails and calls, after hours and on holidays:
Private members’ bills rarely become laws but this legislation has triggered debate in a country where working hours are among the longest in the world. A UBS report said Mumbai leads the list of cities across the world with people working an average of 3,314 hours a year.
I’m sceptical that the right to disconnect will take off in the US in any serious way. I’m not expecting state legislatures, nor for that matter, the federal government, to enshrine such protections anytime soon.
Yet I note that some software companies have started to offer do not disturb features, and those speak to me of some awareness of the problem, and the need for responses. To be sure, some of these developments may be merely pragmatic – a response to the right to disconnect and anti-stress laws some jurisdictions are implementing.
But other developments seem driven by companies rather than governments. As Law.com reports:
Several players in the world of workplace communication software, including Slack, have begun offering “Do Not Disturb” features for employers and employees. After ensuring that we’re connected all the time, it seems that tech companies are now finding ways to help us disconnect.
“Technology is always about creating new solutions that create new problems that require the creation of new solutions that will inevitably have new problems,” said Odessa O’Dell, a labor and employment law attorney at Borden Ladner Gervais in Ottawa.
That the tech industry—the architect of our always-connected culture—is now coming up with ways to unplug “signals an important cultural change within the workplace,” Patrick van der Mijl, the Amsterdam-based co-founder of internal communication platform Speakap, wrote in an email. His company, which is headquartered in New York and caters primarily to retailers with deskless employees scattered in the field, announced Jan. 10 that it had released a Do Not Disturb feature for its users.
Speakap, according to what van der Mijl has observed, has joined a growing list of technology platforms that are “building features that encourage companies to empower their employees to switch off when they’re not working and create a sense of digital well-being.”
Other software companies see such features as a means to improve performance and productivity during the workday – rather than as a way to protect downtime. Again, according to Law.com:
Erik Syvertsen, general counsel for AngelList, a California-based recruitment website for startups, wrote in an email that he views the Do Not Disturb feature as “essential for a productivity tool such as Speakap.”
“Being able to focus and minimize context switching is necessary to make consistent progress on impactful legal projects whether in the legal department or elsewhere,” added Syvertsen, who encourages employees to activate Do Not Disturb mode on their laptops and phones for personal and “work focus time.”
I Want To Be Alone
I think we all need downtime. I’d go further than that, to argue for the importance of solitude, time to oneself – whether it be only hours – to get lost in one’s thoughts, sans distraction.
I’m luckier than most – I’ve been able to structure my life so I don’t even use a smartphone. A dumbphone works fine for my needs.
That doesn’t mean, by any means, that I eschew connectivity. When I’m compiling Links for Naked Capitalism, or when I write a blog post, or a short article, I’m tethered to the internet, via my laptop. And I admit that when so tethered, I check my email more often than I should.
But when I’m writing something longer – whether an article, or part of a book – I write better in longhand, undistracted by the internet, or by the ‘phone. My laptop and ‘phone stay switched off.
During those times: Do not disturb. Please!
“I want to be alone.”