California Employers Beware: Potential New Law Gives Employees the “Right to Disconnect.”

Employers may soon have to think long and hard before contacting an employee during non- working hours. A new law is being proposed which seeks to penalize employers for contacting employees after hours unless the employer is facing an emergency. Now, if you are an employer, you may be wondering, “what additional protections does this potential new law give to the employees?” Probably not much more protection. Currently, and the new bill admits, “[e]xisting law makes it a crime for an employer to require or cause any employee to work for longer hours than those fixed or under conditions of labor prohibited by an order of the commission or to violate or refuse or neglect to comply with specified statutes on wages, hours, and working conditions…” In other words, California already has rules in place that protect employees: overtime pay, breaks for rests and meals, and on-call and standby pay.

If you are a California business owner, you may already know that you may not require employees to continue working past their working hours. If you did that, you would be liable to pay your employees overtime. In fact, most employers regularly pay employees overtime because the employees were forced to deal with unforeseen matters and could not leave at their previously scheduled time. If this is the case, why do we need a law that goes further and actually penalizes the employer for calling its employees after hours?

Well, California regularly creates draconian laws that make it increasingly difficult for employers to conduct business in the state of California. This potential new law is just another example of that. The potential new law states that employers must create a workplace policy that “provides employees the right to disconnect from communications from the employer during nonworking hours.” The phrase “right to disconnect” is defined as the employee having “the right to ignore communications from the employer during nonworking hours.” In other words, the employee can be totally off the grid and non-responsive during the entire time they are not working. What are communications? That is not defined. We can presume that the term “communications” includes texts, emails, calls, etc.

Now, there are exceptions to this rule. The potential new law states that an “employer may contact an employee during nonworking hours for an emergency or for scheduling.” The phrase “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.” Likewise, the term “scheduling” has been defined as “changes to a schedule within 24 hours.” Now, if you own a business you know that not many unforeseen issues would cause such a catastrophic event to occur. Although the unforeseen issue or problem will not threaten an employee, a customer, or the public, and it will certainly not disrupt or shut down operation, it can cause an employer to lose a sale. In fact, there are plenty of times during a business day where one little issue can be solved with a five minute phone call. In addition, any changes to a schedule that are past the 24 hour mark also do not qualify as a reason for employers to communicate with employees after hours.

As a business owner, you can imagine just how vague this potential new law really is. If an employer is planning to have a birthday celebration for an employee on Monday, the employer presumably cannot communicate with employees who are not working on Friday to discuss the celebration. This is neither a scheduling issue or an emergency. The potential new law states that the employee can ignore the communications by the employer. Does that mean that an employer can send communications such as email reminders and not expect a response back? The potential new law seems vague and the answer is unclear. That is because the potential new law also specifically states that the employer can contact the employees during non-working hours to discuss scheduling or emergency. Are those the only times an employer can send a communication to employees during non-working hours? Would a reminder email count as a scheduling issue? Would the employer be penalized for making that communication even if he did not expect or require a response back? Would the mere sending of that communication mean the employer violated the potential new law?

If an employer violates this rule three or more times, he is subject to a monetary fine of at least $100. The employee may also file a complaint against the employer with the Labor Commissioner. The potential new law makes the employer have to justify every after hours communication or be subject to penalty and / or a hearing before the Labor Commissioner. This gives employees tremendous incentive to demand justification for each and every non-working hour communication from the employer and subjects the employer to penalties for communications that (maybe in hindsight) were unwarranted and not justified.

If you run a business, you know that many unforeseen events and many questions arise during the course of a business day. Sometimes, problems can be solved with one simple phone call or text that requires five minutes (or less) of an employee’s time. This potential new law does not create clear boundaries. Instead, it creates many more questions that have been left unanswered. It also fails to take into account the practical way in which businesses are run, how issues are resolved, and the situations in which employees have a chance to even work overtime hours. Some employees work overtime hours because of unforeseen events that occur while they were not scheduled to work.