Employees, and bosses, are struggling to find work turn off switch

Earlier this year, at least for a moment, it seemed like American office workers might be poised to earn a right that a growing number of professional peers around the world now possess: the right to disconnect from the job when not actually on it.

It might come as no surprise that the most recent political effort to pass a “right to disconnect” bill took place on the West Coast, home to much of the nation’s tech industry, a work culture typified by fluid, open-ended working hours and where work software from Outlook to Slack and other email and instant message programs has kept employees attached to the office virtually, if not physically, long past the end of the work day, and often on into the weekend.

The bill mandating workers the right to uninterrupted time off during non-working hours — no emails, texts, calls, or other contact from employers, except in cases of emergency or imminent scheduling issues, or if pre-negotiated into terms of an employee or union contract — stalled out in California’s State Assembly after its April introduction by Assemblyman Matt Haney (D-San Francisco). Its ultimate fate remains uncertain — it didn’t make the deadline for this year’s legislative session — so, the bill is stuck for the foreseeable future.

In a post-Covid world, in which employees have become accustomed to their home being their place of work, and employers have stressed their understanding of the need for greater work-life balance, the language of the bill highlights an issue that won’t go away, and isn’t easy to solve. It would require “a public or private employer to establish a workplace policy that provides employees the right to disconnect from communications from the employer during nonworking hours.”

“Work has changed drastically compared to what it was just 10 years ago,” Haney said when he introduced the bill. “Smartphones have blurred the boundaries between work and home life. Workers shouldn’t be punished for not being available 24/7 if they’re not being paid for 24 hours of work.”

Right-to-disconnect laws currently exist in 13 countries, having originated in France in 2017. New York City and Washington State have in the recent past considered right-to-disconnect proposals, without legislative success. That such laws have passed in Europe but not the U.S. can be understood, at least in part, as an underscoring of the differences in expectations written into American and European work cultures, with a battle between the ideas of a free market and government oversight — some would say government intrusion.

For others, it’s not Europe but another overseas example that looms larger. Prominent investors including Jason Calacanis have pointed out that competition with China, where a 72-hour work week and so-called 996 work culture persist, renders right-to-disconnect a non-starter in the face of a generational geopolitical rivalry and economic competition. 

U.S. business opposition

Some U.S. business interests have argued it’s up to workers to set their own work-life balance. Others say the movement should come to the U.S. — through the implementation of policies companies enact on their own without a government prod being necessary, which some companies overseas have done.

Many critics of the bill point to the complexity of establishing non-working hours for salaried employees —the California bill proposes to protect both hourly and salaried workers. Some opponents say that in addition to the administrative hurdles, such a mandate could actually hurt employee freedom. In an era of remote work, during which employees proved to be productive on schedules that often broke with traditional hours, the legislation would be counter-productive.

The world’s largest human resources trade group, SHRM, stated in a letter of opposition sent to Haney during the spring that the bill represented the sort of “blanket solutions to challenges in the workplace [that] do not deliver expected results and often harm those they are designed to help.”

Specifically at issue was “the bill’s one-size-fits-all approach,” which SHRM suggested would only hurt the “autonomy employers and HR professionals need” in order to establish workable solutions. SHRM declined to comment beyond its letter.

History of legal worker protections

There is a long history of legislation enacted to codify worker rights and improve their lives without being overly intrusive, from the retirement financial security law ERISA to minimum wage laws that continue to build momentum across the U.S.

Alan Guarino, vice chairman of management consultant Korn Ferry, recently told CNBC that there is an underlying reason why this idea has become a goal of some workplace advocates and how it could fit into this broader labor law history. “It really goes to the core of something much bigger,” he said. “Pre-Covid, the world of work had gotten so frenetic. Quite frankly, if we didn’t have Covid I suspect within a decade the work environment would have broken anyway. Work was life, and life was something that happened on the way to and from work. We were operating at 7,000 rpm. The bill is an indication of trying to grapple with this issue that work is 24/7.”

Paul Secunda, an attorney who has written extensively on labor rights, including the right to disconnect, said it’s not the end of the road for the legislative concept in the U.S., but it’s not shocking to see failures to date. “There is a lot of corporate opposition from the standpoint that such bills take away company flexibility in the workplace,” he said. He added that building momentum similar to successful minimum wage laws would be possible, but only if a shift in focus is made. 

Rather than narrowly defining the issue as a clerical one measured by hours worked and compensation, it’s better to approach right-to-disconnect as a universal human right, “like being guaranteed health and safety in the workplace,” Secunda said. This can be achieved through language and laws that already exist, such as the Occupational Safety and Health Act, which provides legal protections under its general duty clause. Right-to-disconnect issues could be attached under mental health parameters set forth in the language of OSHA, he argues, similar to what is being developed for workplace violence issues.   

A new work contract between bosses and employees

The most recent legislative effort in California stalled, according to Joanna Starek, senior partner and chief commercial officer at leadership consulting firm RHR International, because it presented an unrealistic view of how work actually happens. “Imagine working in a global company that has employees in 38 countries,” she said. In effect, it overdetermines the need for a work day not circumscribed by a 9-to-5. Similarly, the rise of remote work has a promise of flexibility built into it that workers want. “They may opt to take a few hours off during the middle of the day, and then work on a project in the evening,” she said. 

But Starek says the stalled bill does have clear merit in its philosophical context, and the questions it poses won’t go away. What defines a day of work in today’s world? What can companies do to help employees understand when to say ‘No’? But a bill that is predicated on the notion that people work 9-5 in the same time zones can’t solve those issues. “More groundwork needs to be done to fully understand the world of work today before something like this could pass in the U.S.,” Starek said.

Of course, even if a similar bill passed, companies could easily work around its provisions by writing into an employee’s contract different terms. As long as the employee signs, the legislation would be moot. Better training and onboarding for employees, especially ones who are just entering the workforce and keen to better understand how to navigate competing work-life responsibilities, will be needed.

Work technology itself has taken some small steps to address the issue, with Microsoft Outlook now flagging emails where a worker is about to hit “send” outside of normal work hours and suggesting a scheduling option. Slack flags time zone differences between employees and offers the “zzzs” for when employees are not checking notifications.

In the end, Guarino says the right to disconnect debate does get one thing right. When it comes to putting responsible limits on work’s intrusion into life, “leaders may not know how to manage that.” But he said it’s an issue where solutions should be driven by an individual and their boss. “It’s all about leadership and the contract between employee and boss. It has to be somewhere between work being 24/7 and work being eight hours a day. You don’t need legislation if you have a good leader and good employees who are aligned.”