‘Right to Disconnect’ Plan in California Hits Employer Backlash

A California “right to disconnect” proposal aims to protect workers from the growing expectation that they’re always available to their bosses, spurring opposition from business groups that say it would create a compliance mess especially for management of salaried employees.

The bill (AB 2751) would require employers to identify specific work hours for their employees and prohibit them from demanding workers respond to communications outside those hours, except for emergencies and scheduling changes.

If enacted, it would be the first state law of its kind in the US, although more than a dozen countries including Australia, France, and Mexico have enacted some version of a “right to disconnect.” Employee burnout has become a common concern due to the growing ubiquity of smart phones and remote work during and following the Covid-19 pandemic, with 42% of desk workers and managers globally reporting they’ve experienced burnout, according to a 2023 Future Forum survey.

US workers traditionally have other legal protections against nonstop work expectations, such as overtime laws that require businesses to pay them one-and-a-half times their regular rate for hours beyond 40 per week. But many office-professional and managerial positions are paid a fixed salary and considered exempt from overtime laws.

The California bill would apply to salaried as well as hourly workers, which is a strange policy choice that would complicate compliance, said employment attorney Joy Rosenquist of Littler Mendelson P.C. in Sacramento. Salaried employees typically have more flexibility with no strictly set work schedule like the one the bill requires employers to establish.

“As exempt employees, we’re paid a salary for doing our work whenever we need to,” she said. Some days, that might mean leaving mid-afternoon to pick up a child from school and then logging into work later that evening to finish up the day’s to-do list.

“In a weird way, it really subverts flexibility for exempt employees,” Rosenquist said.

The bill has a long way to go before it could become law. The state Assembly’s Labor and Employment Committee advanced it in an April 17 vote, but lawmakers voiced concerns about how it would function in real-world workplaces. It still needs votes from the full Assembly and Senate before it would go to Gov. Gavin Newsom (D).

Labor groups TechEquity and the United Food and Commercial Workers back the measure. But several major business groups, including the California Chamber of Commerce and Society for Human Resource Management, oppose it.

New York City and Washington state previously considered “right to disconnect” proposals but didn’t enact them.

For hourly workers, California law already includes stronger protections than federal statutes, such as overtime pay calculated daily for hours beyond eight per day. For work beyond 12 hours per day, the overtime pay increases to double the worker’s usual hourly rate.

The US Department of Labor is close to finalizing a rule to expand federal overtime protections, but would still cover a smaller portion of workers than California’s law.

‘Constantly Accessible’

Employment lawyers are increasingly hearing from workers about the blurred boundaries around work hours, Mariko Yoshihara, legislative counsel and policy director for the California Employment Lawyers Association, told lawmakers at the April 17 committee hearing.

Modern technology “means workers can be constantly accessible, which has created an expectation then that workers should be constantly available to their employers at all hours of the day,” she said. “So, the boundaries around our work lives have been completely blurred, and this is especially an issue for women and family caregivers who may have a harder time trying to draw those boundaries.”

The bill’s author, Assemblymember Matt Haney (D), said the measure is aimed at ensuring workplaces have policies in place on after-hours communications.

“Simply put, this bill requires an employer to have a policy. It can be as flexible as an employer and an employee want it to be,” he said. The bill calls for employers and employees to establish what counts as “nonworking hours” by written agreement, but doesn’t set any limits on how they define that term.

The arguments proponents have made in support of the measure apply largely to exempt employees, said Ashley Hoffman, senior policy advocate for the California Chamber of Commerce.

“We have strict requirements about how much that worker must be paid and what kind of job duties they must be doing to get that flexibility that comes with being an exempt worker,” she said.

The shift to more remote work during the Covid-19 pandemic exacerbated the mindset that employees are always available via email, text message, and other digital communications, said Aymara Ledezma, attorney with Fisher & Phillips LLP in Los Angeles.

“I don’t know that this bill necessarily would help with these issues,” she said. “It would create a lot of obstacles for certain industries and businesses that wouldn’t really get down to the problem of burnout.”

One objection raised has been that the measure could disrupt the way attorneys and salespeople interact with their customers or prospects.

“If you’re a client-facing industry, this could be a very hard law to jibe with your business,” said Susan E. Groff, attorney with Jackson Lewis P.C. in Los Angeles.

Uncertainty, Compliance Risk

Employees also could feel pressure by the nature of their jobs to continue monitoring and responding to after-hours communications, even if the law theoretically says they don’t have to.

“Communications, media, public relations, social media managers, or public affairs positions essentially exist to respond in real time to news,” Hoffman wrote in the California Chamber’s letter of opposition. That also could mean their employers would set those employees’ working hours as 24 hours a day, seven days a week, she said.

The proposal to exempt after-hours communications for emergencies is confusing and unclear, Rosenquist said, in terms of the definition of emergency and how that communication would work in practice.

“In order to determine if it’s an emergency, the employee has to read the email,” she said.

It’s also unclear whether a manager or a coworker sending a message after hours would be a violation, or only if the company penalizes workers for not responding to after-hours communications, Groff said.

A worker could complain to the state labor commissioner if their employer commits “a pattern of violation,” meaning three or more documented instances of violating the worker’s right to disconnect, according to the legislative text.

Employees also might be able to bring claims via the state’s Private Attorney General Act, depending on the final bill language, Rosenquist said.

Alternative Approaches

The bill seems likely to undergo revisions through the legislative process and could ultimately exempt some state and local government agencies such as law enforcement.

“How are government operations, which is a 24/7 function, supposed to run when people can’t contact each other off hours?” Rosenquist said.

Legislative staff for the Assembly’s Labor and Employment Committee recommended Haney amend the legislation so that the “right to disconnect” wouldn’t apply at all to salaried professionals who are exempt from minimum wage and overtime laws.

France’s right-to-disconnect law has been in effect since 2017, but employment lawyers said a shift in corporate culture might be what’s needed in the US more than legislation.

“Look at a country like France, and many businesses are closed for the month of August,” Groff said. “The climate may be different in certain countries than in the US.”

Managers typing emails at night can schedule them for delivery the next morning, for example, or they can include a note at the top saying employees don’t need to read or respond until the next work day, Rosenquist said.

“If you have a workplace where emails are being sent at all hours of the night, maybe you address that through workplace culture,” she said.