During 4th of July celebrations a couple of weeks ago, many people had a chance to ponder the meaning of freedom. Most people would agree that freedom includes the right to free speech, the right to practice whatever religion you please, and the right to express yourself. Does freedom also include the right to be free from answering emails at 8 p.m? According to the French, it does.
As part of a series of labor reforms, the French Parliament has proposed a law that would give employees the right not to answer emails outside of work. The law would require employers with more than 50 employees to designate a period during the day when employees would not be required to send or receive emails. The law, if passed, would take effect in January 2017.
“All the studies show there is far more work-related stress today than there used to be, and that the stress is constant,” a French member of parliament told the BBC. “Employees physically leave the office, but they do not leave their work. They remain attached by a kind of electronic leash— like a dog. The texts, the messages, the emails — they colonize the life of the individual to the point where he or she eventually breaks down.”
So, should workers have the right to disconnect? Could such a law ever be passed here in the United States? Actually, many people may be surprised to find out that a variation of this law might already exist. As we have discussed, an employer may have the pay employees who are required to check their emails after work.
The Fair Labor Standards Act, Minimum Wage Law, and Wage Payment and Collection Act require employers to pay employees for all hours that they spend working. Employers are sometimes required to pay employees for time spent “on call,” where the employee is not actively working but might be expected to work at any moment.
Whether the employer must pay an employee for this time is dependent upon a number of factors, the most important of which is how much freedom the employee has. If the employee’s personal life is only minimally restricted during the time spent on call, then the employee probably will not have to be paid during this time. If the employee’s personal life is significantly restricted, however, an employer must pay his employee for this time spent on call. Whether an employee must be paid for time spent checking email outside of work hours has been the subject of a few lawsuits. Of course, only employees who are not exempt from the FLSA would have to be paid for responding to emails outside of work.
So, employers should be careful about emailing employees outside of work. If the employee must respond to the email, the employer may have to pay the employee for the time he or she spent checking and responding to the email. Even if the employer does not have to pay the employee for checking the email, Article 25 of the French law serves as a warning to employers:
“The development of information and communication technologies, if badly managed or regulated, can have an impact on the health of workers. Among them, the burden of work and the informational overburden, the blurring of the borders between private life and professional life, are risks associated with the usage of digital technology.”