Amid the ‘Do Not Disturb’ Movement, That After-Hours Email May Be Illegal

By: | February 15, 2019

Kate Browne Esq., ARM is Senior Counsel Executive & Professional at Berkshire Hathaway Specialty Insurance. She has spent her entire career in the insurance industry, and speaks and writes extensively on the impact on the legal implications of drones, autonomous vehicles, the internet of things, and other emerging risks. Kate can be reached at [email protected].

Brokers, risk managers and underwriters on the go and available around the clock may be surprised to learn about the “Do Not Disturb” movement; a growing effort that supports allowing employees to disconnect from work at the end of the day.

This movement is starting to take effect around the world. In 2017, France passed a law requiring French companies with more than 50 workers to guarantee employees a “right to disconnect” from their emails after office hours. Quebec is considering similar rules, and Italy has introduced a right for some workers to be “disconnected from technological equipment.”

In Germany, employees at the auto maker Daimler are given software that lets them automatically delete incoming emails while they are on vacation. When an email is sent, the program, called “Mail on Holiday,” issues a reply to the sender that the person is out of the office, the email will be deleted and provides another employee’s contact information for pressing matters. And Volkswagen configures its servers so that emails are not sent outside of regular working hours.

In Germany, employees at the auto maker Daimler are given software that lets them automatically delete incoming emails while they are on vacation.

Ironically, in the “city that never sleeps,” the New York City Council is currently considering a proposal that would give employees the right to ignore electronic work communications after hours, and fine employers $250 every time they violate that right. Oddly enough, government entities in New York would be exempt from the legislation.

Could companies get around these new laws?

While no one is against a healthy work-life balance, vague terms in proposed laws might be an issue. For example, New York City’s proposed law includes an exception that allows employers to contact their staff after hours for undefined “emergencies.”

Additionally, right to disconnect policies could pose special challenges for global companies with workers scattered around the world. In the United States, right-to-disconnect laws may conflict with certain provisions of the Fair Labor Standards Act such as the de minimis rule. This rule states that non-exempt employees are not entitled to overtime for doing an insignificant amount of after-hours work over the course of a few seconds or minutes.

In July 2018, in the first case applying the “Do Not Disturb” law, the French Supreme Court ruled that the French branch of the British firm Rentokil Initial had failed to respect a senior employee’s right to disconnect. It had required him to be continually available by telephone to deal with problems raised by junior staff or customers – including when he was not at work. The court found this violated the law and the employee was awarded €60,000.

Effect of workplace FOMO

While certainly well-intentioned, the “Do Not Disturb” movement misses the mark with employee work habits. In a hyper-connected world, employees of every industry will often check their devices because of FOMO. “One size” fits all laws may have unintended consequences such as people spending more time at work.

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