The New French “Right to Disconnect”— Can Legislation Alter Work-Life Balance?

Posted in: Employment Law

In the European Union, many companies are grappling with the so-called right to be forgotten—the obligation of Internet companies and others to delete data about them so that records can no longer be found by search engines. But in France, another new right is being introduced that focuses on technology—this is the right to disconnect—in other words, the right not to have to check email or to respond to the boss’s texts over the weekend.

In theory, this concept sounds appealing. Who would not like to be left alone and to have a real work-free weekend? The French may value the chance to sip a nice glass of Bordeaux without worrying about having to answer a text. Some of us may be addicted to our devices, so a chance for a “right” to disconnect might help us detox. But this type of ban may be difficult to police and to legislate. Moreover, this idea is one that may not be replicable in other countries, including the United States. In this column, I will briefly outline the key aspects of the new law and analyze why it is an impractical concept that may cause more confusion than clarity for workers and companies.

The French Law

In January 2017, the French Parliament enacted a new labor law that is meant to give employees in France a “right to disconnect” from email, smartphones, and other electronic devices once their work day has ended. Previously, this right was recognized only in a French national collective bargaining agreement for workers in the high tech and consulting fields. It covered approximately 250,000 “autonomous employees” whose contracts were based on days worked, not hours, and thus to whom the French 35-hour work week limits did not apply. The agreement referred to an “obligation to disconnect communications tools,” but only after an employee has worked a 13-hour day.

The right to disconnect also was also implied by the French Court of Cassation, the highest administrative tribunal, which noted in a 2004 decision that an employee being unavailable on his/her personal mobile phone outside of work hours did not constitute an offence, and therefore was not a reason for termination based on gross negligence.

The new law, an amendment to the French Labor Code, will require companies with 50 or more employees to negotiate new guidelines with staff. The right to disconnect would need to be negotiated as part of a mandatory annual negotiation that focuses on quality of life, among other things. Companies must negotiate “[t]he terms and conditions for full exercise by employees of their right to disconnect and implementation by the company of systems to regulate the use of digital tools, with the aim of ensuring the observance of breaks and holidays, as well as private and family life.” Article 25 of the law provides a rationale for the new right: “The development of information and communication technologies, if badly managed or regulated, can have an impact on the health of workers.” The law also warns that “the burden of work and the informational overburden, the blurring of the borders between private life and professional life, are risks associated with the usage of digital technology.

If management and staff cannot agree on new rules, the firm must create a company charter to define and regulate when employees should be able to unplug. Many of the news stories covering this law focus on weekends and evenings as key times for employees to disconnect.

French unions have long pushed for such a blanket “disconnect” rule. In response, the Ministry of Labor commissioned a report in 2015 on the impact of technology on overwork. Labor Minister Myriam El Khomri commissioned the 2015 study that warned of the health impact of what she labeled “info-obesity.” The study reportedly confirmed that more and more French people could not avoid work—even when they weren’t. As for the new law, “These measures are designed to ensure respect for rest periods and . . . balance between work and family and personal life,” the Ministry of Labor said in a statement.

The email rule is the latest in a series of measures designed to overhaul France’s labor laws. The government last year introduced new rules that make it easier for employers to reduce overtime pay and to terminate employees. Such restrictions on employee benefits have caused strikes and public outcry—but a new study by the French research firm Eleas, shows that over a third of French professional employees stay plugged in after hours. A whopping 60 percent of French workers approve of the right to disconnect.

The law, however, itself appears to have few teeth. Since there are no fines for companies who flout the new rules, the new law comes with little cost. It is also unclear how an employee could enforce his or her right. It might be that the law serves solely as a shield so that an employee could use the right to disconnect as a defense if an employer tried to terminate or discipline him or her for not reading emails after hours. Some labor experts note that employers may be subject to existing sanctions and liable for overtime pay and for other remedies if they do not allow their employees time to disconnect.

Can Work-Life Balance be Legislated?

France’s law is an experiment. But the new law leaves many questions unanswered. There is certainly more research to be done, and perhaps once the French law is in place, we will have the makings of a real-world experiment that paves the way for future laws in other jurisdictions.

Even without government action, French companies have already begun grappling with how to tamp down their employees’ addiction to email. Managers at the insurance company Allianz France, with about 10,000 employees, are under orders not to send work emails after 6 p.m., or to hold meetings in the late afternoon. The cut-off time for staff emails is 7 p.m. at KEDGE Business School, which has campuses in France. Solvay, a Belgian chemical company with offices in more than 50 countries, introduced new email guidelines for its French employees last year, urging them to not send emails on holidays or off-hours except for urgent matters.

But while companies may take their own steps to instill a better work-life balance, or to try and nudge their employees to stop texting and emailing after dinner—the idea of legislation in this area seems difficult. Will courts now become arbiters of disputes over what is reasonable with respect to employees and when they peek at their iPhone?

Companies that are global and have offices in multiple time zones will necessarily have employees who need to communicate during varied hours—as someone in Singapore may be hours away from the home office in London. In addition, when employees travel, they may well need to communicate with their colleagues at differing hours.

More generally, the use of electronic devices and technology has given workers—including the millennial generation—more flexibility. So, a worker might take a break mid-day to go to a yoga class or stay home to wait for a repair person—and then make that time up later in the evening. Thus, the French law will need to consider myriad working cultures and schedules—beyond the typical 9 to 5 that people used to work. Thus, the law may be more difficult to apply; perhaps it will work well for unionized employees, but for professional staff it may be difficult to create policies or norms that don’t have huge exceptions. Do we need a 500-page manual on how the right to disconnect applies to individual workers?

Employees may be able to focus and respond to emails better once their work day is done. Thirty minutes of after-work emailing may allow a worker to work more productively than when on the job, and to start the next work day calmly with major emails cleared and out of the way. Other workers may enjoy collaborating, and the process of creating and innovating does not necessarily have a time clock. A scientist who is parsing test results or a software engineer who is trying to write new code may not pay attention to the clock when needing to reach a coworker. Journalists who are on a deadline will not stop the clock and miss a major breaking story.

Employees also need to receive alerts—of anything from inclement weather to major announcements (e.g., a company may have a major crisis or publicity scandal). Thus, emails may come at odd hours of the day and night for good reason. And the question of what protections and rights workers should get—if a boss sends one email after dinner and expects a response, this may be different from a manager who is serially texting his employees for hours.

The French law would seem unlikely to be translatable over here in the United States. Tech firms and innovators, for example, focus on collaboration, and other companies pride themselves on the fluidity of their work and the way in which they communicate when in and out of the office. The President of the United States tweets at different hours of the day and may expect his employees and advisors to be aware of his communications.

The Business Case for Disconnecting

The French law is laudable in its attempt to address changing social behaviors, and it is a legitimate concern that that work is becoming all-consuming since devices are with us always. But legislation may not be the right way to address this problem. Corporations surely see the various studies about happiness, health, and productivity. If this is the case, then managers and executives need to attend to their human capital—and focus on how and when employees can be online. But to create something that may lead to an enforceable right in court, or that may lead to large-scale litigation, seems to be the wrong way to approach the problem.