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The right to disconnect vs. America's always-on culture

European countries are adopting right-to-disconnect laws, protecting workers from employer retaliation. But in the U.S., there appears to be little interest from lawmakers.

Rafael Espinal, a former New York City councilman, is an advocate for a law ensuring an employee's "right to disconnect."

In 2017, when he served on the city council, he took a page from France, which had approved such a law a year earlier that protected employees from having to take calls or read emails when they weren't working. Espinal believed the law was needed in the U.S. "to tackle a crucial catalyst of workforce burnout," he said. 

Business groups voiced strong opposition to Espinal's bill, calling it an impediment to firms with global offices and an unnecessary, burdensome regulation, especially on small businesses. As a result, the bill wasn't adopted.  

Meanwhile, Spain and Ireland have followed France in approving right-to-disconnect laws. Earlier this year, the European Parliament, made up of representatives from the EU's 27 member countries, voted to support a right-to-disconnect law, 472 to 126, with 83 abstentions. The next step is for the EU's executive branch, the European Commission, to take action, a process that will take several years, said Ingelise de Boer, the parliament's press officer. 

In the U.S., a right to disconnect "hasn't gone mainstream yet," Espinal said. But because of the pandemic and more people working from home, "we are also beginning to see a surge on a grassroots level as employees are making demands and setting expectations on how they'll work moving forward," he said. 

Espinal's effort may be unique in the U.S., and so far, there's little interest by state and federal lawmakers in setting limits on America's always-on electronic culture. But Espinal's warning of "endless work hours spurred by the digitization of work" is getting more attention as work-from-home increases post-pandemic. 

Some researchers, such as Liuba Belkin, associate professor of management at Lehigh University's College of Business, point to health and safety issues with after-work communications. It can increase stress and anxiety and even lead to marital discord, she said.

"When you are at work, you should be focused on your work," Belkin said. Similarly, when employees are spending time with family, they shouldn't be making work calls or "thinking about work," she said. 

"We, as humans, have a very limited pool of resources: cognitive, physical, emotional," Belkin said. So, if you are responding to work email after hours, "it's harmful because you're not detaching from work," she said. 

What is the right to disconnect?

Health consequences

Overwork is a health problem. Last month, the World Health Organization (WHO) reported that overwork is shortening life from heart disease and stroke. For example, people who work 55 hours a week faced a 35% higher risk of stroke and a 17% higher risk of heart disease when compared to those who work 35 to 40 hours a week, according to the WHO's report. 

In response to this finding, WHO made some recommendations to governments, which included setting limits on working and making work time more flexible. 

The case for a right-to-disconnect law has only grown since the pandemic, Espinal said.

"Our capitalist system feeds off of workers being available around the clock," he said. "It's a top-down culture that's deep-rooted in the idea of maximizing productivity for profits," and one that will take a major effort by elected leaders and affected workers to change, he said. 

The NYC bill "was sensationalized as a law that would make it illegal for your boss to call you after work," an untruthful characterization, Espinal said. "It simply protects the worker from retribution if they choose not to respond outside of normal business hours," he said. 

"With enough education that these protections exist in other parts of the world," Espinal said, pointing to Europe, "I do believe we can see a resurgence of the issue in our politics."

Paul Secunda, an employment law attorney at Walcheske & Luzi, LLC in Brookfield, Wis., believes right-to-disconnect protections will gain interest as remote work continues after the COVID-19 pandemic. 

'Consider your own life'

"There are many different ways of tackling this problem, but it's hard to think that there isn't a problem, though," Secunda said. "Just consider your own life." 

It's hard to think that there isn't a problem, though. Just consider your own life.
Paul SecundaEmployment law attorney, Walcheske & Luzi, LLC

"Consider how you feel when someone texts you from work, or you get an email from work, even if you don't have an obligation to respond," Secunda said. Employees may feel compelled to respond "because they want to be good employees."

In the 2019 paper "The Employee Right to Disconnect," Secunda examined employee protections and how the proliferation of electronic devices leave employees incapable of escaping work. He suggested that the Occupational Safety and Health Administration's "general duty clause," which states that employers must keep a workplace free from recognized harms, could be used as a framework for labor protections. 

There's room to experiment with approaches, Secunda argued. For example, while France took a regulatory approach through legislation, Germany chose to follow a model of corporate self-regulation. States can try different methods as well, he said. 

Secunda said, despite what executives might think, there are diminishing returns for employers if workers put in nine to 10 hours a day and still try to deliver their best work. 

Business analysts agree that the always-on employee communications are a detriment to productivity and create employee retention risks. But they also don't see regulation as a fix, especially in the emerging era of flexible work, where employees can shape their work hours. 

Employee flexibility

This "employee-driven flexibility," said Alexia Cambon, a research director in Gartner's HR practice, "means empowering the employee to create the work patterns that make them productive." As a result, employees will work schedules that are best for them, she said. 

Employers need clearly stated principles and a culture that supports flexible working arrangements, Cambon said. That means employees know what's expected of them and can respond to communications when it is the right time for them, she said. 

For instance, Cambon said there are working mothers "who would find it extremely hard to have to comply with a ban on after-work communications."

Similarly, Anh Phillips, a researcher and author at Deloitte Consulting, said it's essential for employers to set principles, cultural practices and employee expectations.  

Managers have to tell employees that they should disconnect and can do so without penalty, she said. If managers expect after-hour responses, "it's not going to help reduce the stress," Phillips said. 

Indeed, according to research by Lehigh University's Belkin, it's hard for many people to detach from work. 

In a survey of 570 working adults, Belkin and her co-researchers found that, on average, individuals reported spending almost eight hours a week monitoring work-related emails after hours. It also found that 55% had a hard time detaching from work, and only 8% had no problem doing so.

The issue was examined in the 2020 paper "The Invisible Leash: The Impact of Organizational Expectations for Email Monitoring After-Hours on Employee Resources, Well-Being and Turnover Intentions," which Belkin co-authored along with William Becker, an associate professor of management at Virginia Tech, and Samantha Conroy, an associate professor of management at Colorado State University.  

It's in the employer's best interest to protect an employee's non-work hours, Belkin said. "Employees will be more motivated and rejuvenated," emotionally able to perform the work, "and also will be more grateful," she said. 

Patrick Thibodeau covers HCM and ERP technologies. He's worked for more than two decades as an enterprise IT reporter.

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