Could a “right to disconnect” become law in the U.S.? France is trying it. Effective January 1, a new French law went into effect giving workers a “right to disconnect” when not at work. French employers with 50 or more employees have to adopt written policies restricting the hours that workers can send or receive emails, text messages, or any other digital, work-related communication. The new law is meant to allow workers to escape from the pressure to always monitor company emails and give them the legal right to ignore their work emails while off the clock, as well as truly give them an opportunity to unwind.
In the U.S., there has been no reported discussion from state or federal legislators about actually implementing a similar “right to disconnect.” However, that does not mean off-the-clock employees are without rights, as a 2015 lawsuit in U.S. District Court seemed to reinforce.
Even without a formal “right to disconnect,” non-exempt employees have a right to be paid for their work—even work-related communications while off-the-clock. In addition, all of that off-the-clock time checking and sending work-related emails and text messages must be counted toward the 40-hour-per-week overtime threshold and may have to be paid at an overtime rate. Failure to do so can lead to costly wage litigation, liquidated damages, and attorneys’ fees.
There are tools to help eliminate risks from off-the-clock work related to emails and texts. Employers should implement a policy specifically prohibiting non-exempt employees from working while off the clock, including an express bar on checking or responding to company emails and text messages while clocked out. The policy should also require non-exempt employees to report such off-the-clock time so they can be compensated for it. Your policy can still provide that non-exempt employees who perform off-the-clock work or who work overtime without authorization will be disciplined. However, employers cannot withhold pay as a consequence of violating the policy. Employers should also train their managers and supervisors not to send emails and text messages to non-exempt employees when they’re not at work to try and avoid the legal pitfalls that can result.
So while there’s no legal “right to disconnect” in the U.S., employers may want their non-exempt employees disconnecting to avoid troublesome wage-and-hour issues.
