For a corporate attorney immersed in an always-on tech world, it must have seemed odd, at least at first, when California-based LegalZoom general counsel Chas Rampenthal emailed a business contact in the U.K., where the workday had ended, and received an automatic notification that the recipient was off the clock and would be available during regular hours.
“In our business, when we have a problem, it could be a server issue or a website glitch … those calls are sometimes coming in at 2 a.m. and there’s a team of people whose responsibilities are to take care of that,” he said.
But the “Do Not Disturb” movement—the idea that employees should be allowed to disconnect from work after clocking out—is gaining traction, most notably in Europe, where for the last decade or so there has been a gradual and growing push to separate personal life from business.
In Germany, carmaker Daimler allows its employees to use software that not only blocks work emails sent to them during vacations but also automatically deletes the notes and notifies the senders about what has happened: Imagine taking a real vacation, free from the looming specter of a clogged inbox.
“This is what people are doing for the health and safety or their workforce,” Rampenthal said. “It’s part of this idea that we can’t disconnect on our own. That our brains just can’t do it.”
Other German companies, including Volkswagen and BMW, have long had policies against contacting employees after hours. Now, the country’s lawmakers are considering making those policies law by following France’s lead and enacting so-called “right-to-disconnect” rules. The disconnect trend also has reportedly spread to Italy and the Philippines.
Canada has been eyeing similar measures since last year, when the movement also reached the U.S. The New York City Council considered a proposal last March that would give private employees the right to ignore electronic work communications after hours and fine employers $250 every time they violated that right. The proposal was referred to the Committee on Consumer Affairs and Business Licensing, where it remains.
‘Cultural change within the workplace’
Several players in the world of workplace communication software, including Slack, have begun offering “Do Not Disturb” features for employers and employees. After ensuring that we’re connected all the time, it seems that tech companies are now finding ways to help us disconnect.
“Technology is always about creating new solutions that create new problems that require the creation of new solutions that will inevitably have new problems,” said Odessa O’Dell, a labor and employment law attorney at Borden Ladner Gervais in Ottawa.
That the tech industry—the architect of our always-connected culture—is now coming up with ways to unplug “signals an important cultural change within the workplace,” Patrick van der Mijl, the Amsterdam-based co-founder of internal communication platform Speakap, wrote in an email. His company, which is headquartered in New York and caters primarily to retailers with deskless employees scattered in the field, announced Jan. 10 that it had released a Do Not Disturb feature for its users.
Speakap, according to what van der Mijl has observed, has joined a growing list of technology platforms that are “building features that encourage companies to empower their employees to switch off when they’re not working and create a sense of digital well-being.”
Erik Syvertsen, general counsel for AngelList, a California-based recruitment website for startups, wrote in an email that he views the Do Not Disturb feature as “essential for a productivity tool such as Speakap.”
“Being able to focus and minimize context switching is necessary to make consistent progress on impactful legal projects whether in the legal department or elsewhere,” added Syvertsen, who encourages employees to activate Do Not Disturb mode on their laptops and phones for personal and “work focus time.”
Back at Speakap, van der Mijl said the “core values” and “personal beliefs” of his company’s team drove their decision to develop the Do Not Disturb feature. But he acknowledged that “there’s a legal element that also needs to be addressed” as right-to-disconnect and anti-stress laws catch on in more jurisdictions.
Could new laws become ‘gotchas’?
Rampenthal, the LegalZoom GC, views those laws warily—because he’s uncertain about how murky language in the rules will be interpreted. For instance, the New York proposal includes an exception that allows employers to contact employees after hours for emergencies. But Rampenthal wondered how the courts might define an emergency for the purposes of the law.
“Some of these rules are proffered with really good reason, but I get worried that the legal system will turn them into an abomination and they will be used as gotchas for people who were not trying to mess over their employees,” he said. “I’m concerned by them.”
Rampenthal, who stressed that he fully supports the effort to let employees separate life and work, asserted that the federal Fair Labor Standards Act already does a decent job of protecting hourly workers from being forced to work unpaid overtime.
And if a right-to-disconnect law were enacted in the U.S., it might clash with certain provisions of the FLSA, including the de minimis rule, which says, essentially, that employers aren’t required to pay non-exempt employees for doing an insignificant amount of after-hours work over the course of a few seconds or minutes.
Implementing right-to-disconnect policies could also be tricky for companies with workers in different time zones or employees who work from home, said O’Dell.
“We’re a global world now,” she added. “We’re also in an environment where people want flexibility in their work arrangements and it’s going to be hard to monitor.”
Employees themselves present another complication. Many might not be able to tune out work, either because they’re afraid of missing something and not getting ahead or simply because checking emails during every spare moment has become a habit.
“Even if an employer does its best efforts to put limitations in place, we all compulsively pick up and check our phones. It’s hard to turn off,” O’Dell said. “There are a lot of factors pushing us against disconnecting. It’s the age-old tango we’ve always had between that work and life balance.”