Hunton Employment & Labor Perspectives

California lawmakers are considering passing a bill that would give employees the “right to disconnect” by ignoring after-hours calls, emails, and other communications from their employers.  The bill, AB 2751, introduced by Assemblyman Matt Haney (D-San Francisco), would add a Section 1198.2 to the Labor Code that would effectively prevent employers from contacting employees outside of working hours, with limited exceptions.

Specifically, the proposed law would require employers to establish a workplace policy that provides employees the “right to disconnect,” defined as “the right to ignore communications from the employer during nonworking hours.”  Nonworking hours would be established by written agreement between an employer and employee. The bill would authorize an employee to file a complaint with the Labor Commissioner after three or more documented instances of violating the right to disconnect, punishable by a fine of not less than $100.

AB 2751 permits two circumstances in which an employer may contact an employee during nonworking hours: (i) an emergency (i.e., “unforeseen situation that threatens an employee, customer, or the public; disrupts or shuts down operations; or causes physical or environmental damage”) or (i) scheduling ( i.e., “changes to a schedule within 24 hours”).

In a press release, Assemblyman Haney stated: “Work has changed drastically compared to what it was just 10 years ago. Smartphones have blurred the boundaries between work and home life.”  Haney added: “Workers shouldn’t be punished for not being available 24/7 if they’re not being paid for 24 hours of work. People have to be able to spend time with their families without being constantly interrupted at the dinner table or their kids’ birthday party, worried about their phones and responding to work.”  According to Haney’s office, right-to-disconnect laws have been enacted in thirteen countries including Australia, Argentina, Belgium, Columbia, Greece, Mexico, Portugal, Italy, and Spain, and first originated in France in 2017.

The California Chamber of Commerce (“CalChamber”) opposes the bill, which does not specify whether the rules apply to exempt employees.  CalChamber Senior Policy Advocate Ashley Hoffman has said, “[w]e have some concern that this actually restrains an exempt employee’s flexibility, because it forces them to basically write out a set working schedule, which is really contrary to the concept,” Hoffman said.

If SB 2751 becomes law, it is imperative for employers to take practical measures to comply.  If passed and signed into law, SB 2751 could become effective as early as next year.