Seyfarth Synopsis: "Thank you for your email, I will be out of the office from...." New York City employers might soon be seeing a lot more of these "out-of-office" emails from their employees if a recently proposed "Right to Disconnect" law is enacted.
In September 2017, Apple created an iPhone commercial in advance of the iPhone X release, which advertised all of the many new features of this smartphone, including: paying for goods with facial-recognition software, creating "animojis," and taking professional-quality photographs. The new smartphone is being marketed as a traveling computer, bank, camera, video game console, mp3 player, and also, telephone. Interestingly, Apple did not advertise what else the smartphone has essentially become — a mobile workspace, which allows employees to be reached at anytime, anywhere.
At least one New York City lawmaker, New York City Council Member Rafael Espinal, has lofty ambitions to combat the purportedly growing demand on employees to make themselves available to their employers at all hours of the day. On March 22, 2018, Mr. Espinal introduced a potentially landmark piece of legislation, Int. 0726-2018, which is modeled after a similar law in France, and would prevent employers with more than ten employees from requiring employees to access work-related communications outside of normal working hours. Although the legislation excludes certain employees from this requirement [i.e, any employees whose terms of employment require them to be on call twenty-four hours a day on days when they are working (under this scenario the law shall only apply to such employees' days off, including paid time off), work study program employees, employees compensated through qualified scholarships, and independent contracts], employers would be prohibited from retaliating against employees who exercise their rights under this legislation.
Further, the law would mandate that employers give written notice to employees of their rights under this law, and adopt a written policy regarding the use of electronic devices to send or receive work-related communications during non-working hours, the usual working hours for each class of employees, and the various categories of paid time off that employees are entitled to. Employers who violate this statute must pay employees compensatory damages, and are subject to financial penalties ranging from $50 for failing to notify employees of their rights to $2,500 for retaliating against employees.
If this law does pass, New York City will be the first jurisdiction within the United States with a right-to-disconnect bill. It goes without saying that this legislation would have a monumental impact on the workplace for New York City employers, and would cause them to, for the most part, rethink and overhaul their entire workplace. As always, we will monitor this legislation and update you accordingly.
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