In this episode of our Cross-Border Catch-Up podcast series, Lina Fernandez (Boston) and Kate Thompson (New York/Boston) discuss the growing trend of "right to disconnect" laws that permit employees to disengage from work-related communications and activities during non-working hours. Kate and Lina explore how right-to-disconnect legislation is being implemented in various countries, including Spain, Peru, Colombia, Thailand, and Canada. Lina and Kate also highlight the importance for global employers to stay informed and compliant with these evolving regulations.
Transcript
Announcer: Welcome to the Ogletree Deakins podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.
Kate Thompson: Welcome to the Cross-Border Catch-Up,
the podcast for global employers who want to stay in the know about
cutting-edge employment issues worldwide.
My name is Kate Thompson, and I'm here with my colleague Lina
Fernandez. We're cross-border attorneys here at Ogletree.
Today, we're going to discuss a topic that is really
interesting and getting a lot of attention this year, and that is
the right to disconnect.
So, Lina, why don't we start with an explanation of what
exactly is the right to disconnect?
Lina Fernandez: Hi, Kate, and hi, everyone. Well, the right to
disconnect basically refers to the concept of employees having the
legal right to disengage from work-related communications and
activities during non-working hours. So basically, employees can
disengage from their work outside of working hours. This is outside
their daily shift or during vacations or approved leave.
Kate, can you tell us why legislators are addressing this
topic?
Kate Thompson: Yeah, definitely, and it's so interesting to
learn more about this right to disconnect, the laws are all around
the world. So, I think that legislators are addressing this topic
really because we have our phones with us all the time, and
they're connected to our workplace through email, through text
messages. We might have apps on our phone that allow us to access
different features of our work day basically all of the time.
So, because of the fact that we're reachable almost anytime and
anywhere, legislators around the world have wanted to basically
address this topic, and post-pandemic working from home, it really
became more prevalent and really difficult to ultimately unplug
from work because our work tools are really accessible. A lot of us
have our laptops at home, or maybe we bring our iPhones up to bed
with us. So legislators around the world have issued laws about the
right to disconnect to really create measures that are ultimately
going to protect employees from stress and burnout because it's
really challenging to separate work and personal life due to the
fact that we're constantly connected by all of this technology
that we have.
So the goal of this legislation is to really allow employees to
have spaces where they can rest outside of their working hours
without any, that's really the goal, or very limited
interference from their employer, so avoiding the message that
might pop up at 9:00 P.M. at night when employees are trying to
disconnect and maybe spend time with their family, relax just in a
stress-free environment. In practice for employers, this really
means that they're not going to be able to impose discipline if
an employee doesn't answer their email or take a phone call
outside of working hours.
So, Lina, I'm wondering, is all of this legislation the
same?
Lina Fernandez: The legislation is similar; however, countries have distinguished the legislation based on different concepts. So, for example, certain countries apply the right to disconnect to all employees regardless of whether they're, what we call here in the United States, exempt or non-exempt employees. Some other countries apply the right to disconnect only to companies when they hit certain threshold of employees. Countries may also apply the legislation only to employees who are 100% remote. And here, there's a discussion as to whether the legislation may apply to employees who work in-office. And also, legislation may differ as to the type of measurements that employers may need to take to implement and ensure compliance with the law.
Kate Thompson: That's so interesting. Now, do you know what countries have this legislation? I know this is a growing area, so it would be great if we can maybe walk through a couple of countries that actually have enacted this legislation and learn more about it.
Lina Fernandez: Sure. We can talk about a few examples of
countries that have this right to disconnect legislation.
We're going to start with Spain, for example. The legislation
in Spain applies to all employees in Spain, regardless of the size
of the company, and in Spain, companies, they have to develop
internal policies and codes to ensure compliance and to address the
specific needs of the workforce. And this includes not only
developing the internal policies, but also including trainings as
to the specifics of the policy. In terms of penalties, employers
who fail to respect the right to disconnect from employees could
face penalties from the labor authorities because employees would
be unable to file complaints, and the labor authority may fine the
company with penalties of up to 7,500 euros.
In Peru, for example, another country that has a right to
disconnect policy, in this case, it applies to teleworkers, and
they have the right to disconnect outside of their working hours
because per the legislation, the employees need to be off work for
a minimum of 12 continuous hours between a 24-hour period. And in
the case of non-exempt employees, the right to rest increases to 16
hours in a 24-hour period.
The legislation in Peru provides that this right also applies
specifically when the employees are on vacations and leave, and it
provides that if there is an unexpected need or force majeure,
basically whether there is imminent danger to people, if the
property of the workplace is in danger, or it will cause damage to
the continuity of the company's activity, employers may be able
to reach out to the employees even outside their working hours and
this is an exception to the right to disconnect from
employees.
Colombia, similar to Peru, employers cannot require their employees
to be available or to work outside the working hours, except in
cases of an emergency or situation of force majeure. In Colombia,
specifically, the Constitutional Court declared that the right to
disconnect is a fundamental human right. And in this case, the
Constitutional Court declared that this right applies to all
employees regardless of whether they're in a managerial
position or not.
In order to comply with Colombian regulations, employers need to
issue policies addressing the way in which this right will be
guaranteed and exercised, and those policies must include guidance
on the use of work-related tools and any procedures for employees
to file complaints when the employers are not observing the
limitations to the right to work. If an employer does not comply
with the employee's right to disconnect, this could qualify as
labor harassment, and in very egregious cases, companies may face
penalties up to $1.8 million U.S.
So, of course, this is the worst-case scenario, but again, it's
important for employers to be mindful that this is not only about
interfering with the employee's right to rest outside of the
working hours; it could end up or escalate to situations of labor
harassment.
Kate Thompson: Wow, that's so interesting, and a fine of up
to $1.8 million is very steep.
Now, I can give two updates just in Thailand and Canada, which I
also think are interesting and similar to what you've just
talked about before in other jurisdictions. But in Thailand, the
regulation on teleworkers actually provides that outside of working
hours, employees have the right to refuse communication with their
employer or supervisor through any means unless they have
explicitly waived this right in writing, which I just think is
really interesting.
And then, in Canada, specifically in Ontario, the right to
disconnect from work, that's going to apply to all employees at
every level of the organization, which includes management and also
the executive level, and it applies to employers who have 25 or
more employees on January 1st of any year.
And also, it's worth noting that in the United States, so
California attempted to introduce a bill on the right to
disconnect, and New York City and Washington have also attempted to
pass similar legislation. Now, that was back in 2018, but given
these changes that we're seeing globally, you never know. More
states in the United States might actually try to pass this
legislation. And it's interesting to hear about how other
countries outside of the U.S. have this right to disconnect where,
in the United States, it's kind of the opposite for us right
now.
Lina Fernandez: Yes, it's very interesting as you mentioned, Kate, because we often see these enhanced protections to employees outside the United States. But if we look inside, as you mentioned, California, New York City, Washington, attempting to pass this legislation shows that there could be other states trying to catch up with this new trend.
Kate Thompson: Absolutely.
Lina Fernandez: We'll see where we end.
Based on these scenarios, Kate, and all of these countries having
this right to disconnect regulation, what do you think employers
should do or encourage to do?
Kate Thompson: Yeah, I think that's a great question. I
would say that employers who have a global workforce, they should
really determine whether any of the countries where their global
workforce is located, do they have legislation around this right to
disconnect? And if they do, then employers should work to implement
policies and also provide trainings to their employees and managers
about the specifics of the legislation, and this is really key for
employees who are in different time zones, just as an example. So,
I would say that employers will want to do a wide review of where
are their employees located, and where do these laws about the
right to disconnect actually exist?
So, with that being said, Lina, thank you so much for walking us
through these updates. I think this is probably all of the time
that we have for this episode, so thank you for joining us for
today's Cross-Border Catch-Up. Follow us to stay in
the know about cutting-edge employment issues worldwide.
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