Work-life balance

The Right to Disconnect: Emerging Issues and Ways to Overcome Them

Melody Burke

Melody Burke is a student at Harvard Law School and a member of the Labor and Employment Lab.

The blurring of the boundaries between work and life has been an issue plaguing workplaces for years. Even before the pandemic, digital technologies were impacting the confines of a workday to the office, creating an “on the clock” work culture that extended beyond the standard 9-to-5 workday. As observed by Dr. Kristeen Grant, Associate Professor at Edinburgh Napier University, this created a “need to respond to messages and e-mail as soon as possible” and meant that employees were increasingly not getting enough rest during non-work time, leading to increased stress, fatigue, and burnout. This breakdown in work-life boundaries has only been exacerbated as more workplaces have gone remote as a result of the pandemic.

Recognizing that technology was creating this “constantly on call” element and interfering with work-life balance and employee health and wellbeing, France enacted a law in 2017 establishing the right for an employee to disconnect from workplace technologies and communications outside of work hours. Following France’s lead, other jurisdictions have begun enacting their own “right to disconnect” laws and codes, some (such as Ireland and Ontario) in a direct attempt to remedy the deterioration of work-life balance during the pandemic. In January 2021, the European Parliament adopted a resolution calling for the European Commission to develop a statute on the right to disconnect. While similar efforts to implement “right to disconnect” regulations in the U.S. have been unsuccessful, these laws are clearly gaining traction in Europe and other jurisdictions.

In the wake of these laws, three difficulties have emerged: application, enforceability, and the effect on flexibility and autonomy. In order to protect this right, all three will need to be addressed within these legal frameworks.

Lack of Clear Application

One major issue with the purported right that these legislative efforts attempt to create is the lack of clarity and precise parameters surrounding the right to disconnect. Many of these laws do not stipulate how exactly the right is to be implemented, with some only requiring negotiations occur between employers and workers to determine how to incorporate the right into the business model or that employers make best efforts to ensure workers are aware and able to exercise their right to disconnect. This leaves all involved parties unclear about the scope and limits of the right and how it applies, let alone how and when workers can exercise the right.

Another element of this problem is that even though these laws identify a right to disconnect, they do not create an obligation to disconnect. This often shifts the burden of disconnecting to the worker. While proponents of these laws might suggest this allows the workers to take control and choose whether to disconnect or not, the reality is more complicated. Workers may feel pressure from their employers or managers, or desire to get ahead by being more available, and thus may still opt to connect and respond to online communications after hours. In turn, this may disadvantage those who choose to exercise their right to disconnect and deter those that otherwise would.

However, there are ways to remedy these issues. Legislation can incorporate clearer requirements and shift the onus of disconnecting to management. There has been a trend of company policies taking this approach in Germany. In addition, Portugal’s Labour Code expressly puts the duty on employers to refrain from contacting workers during off-hours.

Difficulty in Enforcement

The second problem with these laws is that most of them lack bite. Only a few impose sanctions against employers that fail to incorporate the right to disconnect into their policies and practices. Portugal’s right to disconnect law prescribes significant fines (up to €9690) for violations, such as contacting a worker during their rest period. Yet, many other laws are ambiguous and do not impose sanctions, thus creating an enforcement problem.

Despite being the frontrunner on the right to disconnect, France’s law exemplifies the enforcement problem. The statute is vague and requires that employers negotiate the terms of the right to disconnect with employees. And while there is an obligation to negotiate, there is no obligation to actually reach an agreement nor any penalty for noncompliance. This makes it difficult for employees to identify what exactly their right to disconnect entails, let alone seek enforcement for a breach of that right.

The law is not wholly ineffective. In 2018, the French Cours de Cassation ordered a company to pay a former employee €60,000 for failing to respect his right to disconnect. In that case, the employee was required to permanently be reachable by telephone to respond to requests from subordinates or customers, but was paid only for instances where he was actually contacted. The court ruled that the former employee was entitled to compensation for the extra hours he had spent “on call,” in breach of his right to disconnect.

If legislative efforts begin including sanctions akin to those in Portugal’s law and judicial decisions uphold the right and penalize those that violate it, then these laws will have more teeth.

Impact on Flexibility & Autonomy

Another obstacle facing these laws is arranging for the right to disconnect to coexist with the desire for flexible work. The right to disconnect is more easily implemented and effective within a traditional workday period that imposes rigid working hours. But increasingly, workers desire the flexibility and autonomy to establish their own working hours that differ from the standard, to assist in their mission for work-life balance.

Some have posited that there is an inherent incompatibility between flexibility and the right to disconnect. Labour market experts have recognized that if employees are exercising their right to disconnect at certain times, then that will increase the demands for full responsiveness and attention during contracted hours. In addition, agreeing to rigid “available” hours may limit the ability for workers to enjoy the flexibility that could have been afforded by working remotely, such as the ability to run out to complete an errand or pick up children from school, or even just structure work time around tasks that occur for that particular day.

However, while technology might be one of the driving factors behind the need for the right to disconnect, there is also hope that technological innovation is the way to marry flexibility and the right to disconnect. In an effort to show that companies can leverage workplace technology to empower workers rather than overwhelm them, a Quartz Whitepaper highlighted ways that applications could be used to improve “digital wellness,” such as setting controls “for scheduling, blocking times, and silencing notifications.” Given this research and other observations about technological tools that can highlight work patterns, it is not a stretch to think these developments could be combined with existing hour-tracking technologies to create systems that truly integrate the right to disconnect into a worker’s schedule.

These laws are recognizing a real problem facing the world of work: the pervasiveness of technology and the resultant “always on” work culture. The right to disconnect, and efforts to safeguard this right, are a step in the right direction to addressing this problem, as long as that right is recognized within the greater context of overwork and balanced with the desire for flexibility and autonomy.

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