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.
Software Solutions
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.”
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An important part of this process is teaching — those of us old enough to recall when it simply wasn’t possible for a boss to pester an employee remotely 24×7 and on holiday — as well as when if not written in law it was at least written into work etiquette and basic expectations that one didn’t do this — need to do their best to educate younglings on how it worked.
And, model good behavior by not falling for the ‘oh, I’ll just do this one thing’ while you are on that beach in Hawaii. Your personal cell phone # cna be kept confidential, and if someone wants to be able to pester you outside of work hours and doesn’t like it — well, they can always buy you a company phone and pay overtime when it is answered.
If I am after work hours or on vacation, THEN GAWDDAMMIT IT IS AFTER WORK HOURS OR I AM ON VACATION!
Period, end of sentence.
I recall upon the advent of the brick-sized carphones and similarly immense early cellphones asking my father why he didn’t get one — he responded, “why would I want the company to be able to get hold of me any more often than they already can?”
The impact will depend on the sector. Speaking as a former hospice social worker, a lot of contracts WILL include after-hours duties :-(
Companies requiring employees respond to company emails after one’s work day ends is requiring emplopyees to do company business after hours. This used to be known as ‘being on call’; payment for being on call was required by Fair Labor Standards Act (FLSA) under certain circumstances. (The FLSA was passed in 1938 – another of those good New Deal labor laws.)
https://www.thebalancecareers.com/do-you-get-paid-for-being-on-call-2060048
Reading or answering emails or phone requests for the company after hours on one’s own initiative is often done as a courtesy; if it is not required it is not ‘being on call’. If it is required then it is not voluntary and it is ‘being on call’ and should be compensated.
Should being the operative word
Can you just not answer? How hard is that? Turn the machine off. ‘My battery ran down.’ ‘my dog ate it’ ‘whatever’ Get a different job. Get a union….
Perhaps try NOT turning to the goberment for the solution? Cuz that track is taken…
Not a new issue. In small towns, (not noticed by you big city folks I know) bosses could and can always find you 24 x 7 and on holidays. Heck, they know how much beer you bought at the one grocery store. Techies always want to think they are the first with such and such a problem…Not this time…
Just not answer? Depends on whether you want to keep your job!
I probably agree with you in general but your excuses need work. ‘My battery ran down.’ ‘my dog ate it’ makes, to the techie supervisor, you look like an incompetent idiot. He/she will explain to you how they have x numbers of charge options (at considerable cost if Apple cabling, but they don’t live on your salary) and how they “control” their dog. Yes, they are that literal-minded.
I would try “I was cutting the lawn and then needed to change the oil on my car”. “Bug off” just doesn’t work for most in supposedly egalitarian but actually top-down America.
But I used the “probably” indicator because if you aren’t always available the boss will turn to the person that is. And promotions will follow accordingly. It’s rare for jobs that require phones to have good metrics of performance: I can measure how fast you change a tire compared to Bob but other stuff, not so much. So it’s basically “who responds when I need them” and thus are you OK with probably falling back in line career-wise? I honestly don’t know how I feel about it.
If you have to reply to calls and emails after hours, you are on call.
Set a minimum hourly wage for on-call time, which applies to even exempt employees.
We were only paid for being so when we had an evening or weekend shift. But every day for the couple of hours before and after our day shift we were expected to respond if managers called or emailed. This is because they didn’t schedule enough oncall staff to really meet the needs, and if they were otherwise occupied and the crisis involved your patient, there was no supervisory relief forthcoming from the office.
I once spent hours at the home of a patient who was too weak to get to the door and we had contracted with family not to leave him alone but they did. I believe I got there at about 1p and was in constant touch with supervisors since his brother wasn’t picking up for me. When he was finally reached, he said he was in the south suburbs and couldn’t get back for another couple of hours.
As the afternoon wore on and knowing ethically I could not leave him not knowing in what condition he was, I began asking supervisors who would relieve me at 5p when I was off work: for one thing, I desperately needed to go to the bathroom!
I totally got reamed out for expressing my frustration when I was told there would be no relief since no one was available.
Of course I was glad to be there when the brother finally arrived that I was able to calm the patient, who was out of bed, naked and disoriented, and arrange for his transfer to our inpatient unit.
It is always the line staff who go above and beyond, not the management.
I was there until 7:30p
Wow. My mom is in hospice care now and people like you are making her life so much better than it was. Thank you so much!
> It is always the line staff who go above and beyond, not the management.
We should really invert the management hierarchy at hospitals. Nurses should be in charge, followed by doctors, followed by administrators.
One thing certain: refusing to be on call means not trying to maximize your value to your employer which delivers this message: I do not want to be promoted.
I don’t want to be promoted. Being promoted would result in exactly what this article talks about: a lot more after hours and weekend work. I make a decent salary that affords me everything I need and a good deal of what I want. I value free time for hobbies or just staring at the wall.
Nothing is certain in life and perhaps one day I’ll get laid off and have a harder time finding new work because I wasn’t enough of a go-getter. But then again maybe I’ll get his by a bus and all that go-getting would have been a waste of time anyway!
Your ideas are intriguing to me and I wish to subscribe to your newsletter.
Ugh, it’s sad how neoliberalspeak that “transactionalizes” every human relationship and uses euphemisms, rather than clear English, has become the norm.
Serfs by any other name….
It is amazing to think about how much the world has changed. My father-in-law was president of a big plumbing supply company, 100s of employees, several locations in Canada, business around the world. He retired in the early 80s. In his day, he never worked at night or on weekends. He took extended vacations and never had to connect with anyone at work while he was away. In fact, anyone needing him while he was on vacation was likely to be in ‘trouble’ for not being able to deal with the problem themselves.
His was the work world where executive offices had bars and much work got done over boozy lunches and on the golf course. While there is much about that time that I wouldn’t want to return to, I may be just a low level library administrator, but I’d love to have a bar in my office and be able to offer visitors an afternoon cocktail or glass of wine. In my rose coloured glasses looking back, that just seems so darn civilized.
My boss does catch up on evenings and weekends and does send emails but it is clear that we are not expected to respond until the next work day. And I just don’t email my staff outside of their work hours. I guess that meets today’s standards for a ‘civilized’ office.
“Can you just not answer? How hard is that? Turn the machine off. ‘My battery ran down.’ ‘my dog ate it’ ‘whatever’ Get a different job. ”
Because individual solutions to institutional problems always work?
Because you won’t have a job anymore if you don’t go along with the rest of the staff doing free work for their overlords on their free time?
Because when every company does it, “different” jobs won’t be available to you anymore”
Because other countries are successfully regulating it, why can’t we?
“Get a union.”
I’m right behind you leading the way.
BTW, the united states is a union.
And we are members.
At the risk of spamming, I’ll leave this here again as it seems apropos to this post too –
In Praise of Idleness
Thanks for posting this.
Yes, very good. thanks. This is not a new problem brought on by cell phones or technology….
Boss person has always wanted more from worker person….
We all deal with it different ways. Good to luck to all.
Yes, everyone should read Bertrand Russell’s popular essays!
The summer after high school and the next I worked in a heavy chemical plant at a wage high enough (annualized to $43,000 in 2018 dollars according the the Bureau of Labor Statistics, including comprehensive fringe benefits and a defined benefit pension, as a 17-year-old high school graduate) during my 12 weeks to pay for two years at my flagship state university, albeit along with a minimum wage, 20 hour-per-week job during the school year. Hourly workers who were called in for overtime were guaranteed 4 hours’ pay at time-and-a-half, no matter how long the job took. Anything over 8 hours a day or 40 hours a week was paid at time-and-a-half. Double time on 10 official holidays per year. The company had a compelling interest in staffing levels that did NOT require excessive overtime pay, making life predictable.
Yes, the employment contract and work rules (not onerous to the company or the hourly employees) had been negotiated by the local of the International Chemical Workers Union, members of which moved south from Syracuse when this company opened the new plant. This, in a seriously right-to-work state (and yes, there were more than a few scabs in essence who refused to pay union dues but expected the shop stewards to represent them with excessive zeal in any and all disputes with the company). Employees of nearby nonunion industrial shops made only very slightly less due to the large number of union workers in this small city and the competition provided by union shops: Want to keep your workers, pay them. Retail workers made less than the nonunion industrial workers, but nevertheless made a living on 40 hours a week, with a fixed schedule and defined benefits. Yes, a more civilized time in many areas of life that mattered most…Oh, and those good union jobs from not so long ago that defined a satisfying working class life that everyone but the industrial workers seemed to call “middle class”? All. Gone. With. The. Wind. Period. Consequently, enter Donald Trump. Simple, really, to all but Professional Democrats and their fellow travelers.
This is an effort that makes sense, but is going about it backwards.
This should be the domain of collective bargaining, not regulation. It will never work in the latter longterm whereas the former actually has a chance of sticking.
Only 10.7% of the US workforce are in Unions as of 2017.
https://www.bls.gov/news.release/pdf/union2.pdf
In 1983, 20.1% of the US workforce were in Unions.
In 1960, 33.4% of the US workforce were in Unions.
There isn’t much ‘collective’ to bargain with anymore.
It’s not binary.
The French national Right-To-Disconnect law was instituted through the advocacy of unions, who previously had succeeded in implementing it through collective bargaining for 250,000 IT workers.
https://verdict.justia.com/2017/02/07/new-french-right-disconnect
They wanted to extend it to the entire working population in the country.
It’s wishful thinking to expect the weakened unions of the United States to get this done one bargaining agreement at a time, although they can certainly join in as they have in the “fight for $15” movement.
Minimum wage, discrimination, paid sick leave, vacation and family time have been or are being won by municipal, state or federal legislation. Leaving the legislative arena to the oligarchs and their factotums is a recipe for a country full of right-to-work laws and no rights at all.
The mere fact that the City of New York has joined this battle, proves that the workers have already lost this war.
The legislation does not address the roots of the problem.
1. Even in the 1980s, I had to put up with people who bragged that they never took vacations because they were just so busy, and of course, the company would fall apart immediately without them. Working all hours is an extension of that attitude.
2. I am in management at a large European company. My boss (and his bosses) don’t answer or read mails in the evenings or on weekends, and my boss regularly disappears without a contact address for a month every year. I make it clear to my direct reports that I consider burnout to be a problem that can be partly addressed in a preemptive fashion, by focusing on other things in the evenings and on weekends (and at 4 AM also). And yet, there are always a few, usually those who have worked at American companies, who work on their days off and read/answer emails at all hours.
This is a combination of their not having lives outside the office, and good old a**-kissing.
Vacations (and being offline evenings and weekends) are also good business continuity tests, as there should never be a situation where a large business depends on a person or group of people to be available always.
But the problem is too many employees think of this as a good idea, and it’s a challenge to convince them otherwise. So legislation aimed at not forcing them to do what they really want to do misses the mark completely.
The root of the problem here in the US is that companies are requiring workers to be on call without pay. It addresses firms’ demands, not workers voluntary actions.
From this post:
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.]
I wonder if it would make any difference if you had a law that said that if you were on salary, that you could only be contacted out of hours if you agreed to it in your contract. But that if you were on wages, you could not be contacted out of hours at all.
I work in software development, on web sites that are expected to be constantly up. So far I have managed to separate my work and home lives very completely. I don’t check work email at home, and I also don’t check home email at work, which is of course the other side of this coin, and only fair. I also have never signed up for the VPN, and don’t do any work on work projects while at home, except for the inevitable thinking about work problems while in the shower.
I have always been afraid that some day I will be asked to watch site-monitoring pages, and I have always thought I would suggest that on-call work should always be paid, even if nothing occurs. Just like in medicine, being on-call means you are not doing certain things if you are doing your job of being available for call – not getting drunk or stoned, not going out of cell-phone range, having a computer available to you if appropriate, etc. Maybe this should pay some fraction of the hourly rate, then kick into full time if something occurs, but it should not be free to the employer – the readiness has a cost.
We’ll see if this ever happens to me, and if I actually have the courage to speak up, and if I do, what impact it has on my career at the company.
In the meantime though, I would suggest that anyone who finds themselves trapped answering emails from work after hours just start gradually or abruptly withdrawing from it. See what happens – it might not be as bad as you think.
I recall one of the later (last?) examples of Catch-22 in the book:
“they can do anything we can’t stop them from doing”
Unfortunately with the severe power imbalance between labor and corporations I’m pessimistic about the prospects of this proposal if it passes.
Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong which will be imposed on them.
– Frederick Douglass