By Scott P. MalleryAri Hersher, and Clara Rademacher

Seyfarth SynopsisCalifornia lawmakers have introduced legislation that would give employees the right to ignore communications from their employers that are received outside the contours of their “working hours,” which must first be agreed upon, in writing.

If signed into law, AB 2751 would add a section to the Labor Code that would require employers to establish a workplace policy that would give employees the right to disconnect from employer communications during defined “nonworking hours.”

Who Gets to Unplug?

Under the newly proposed legislation, an employer may only contact a covered employee during non-working hours when there is:

(1) an emergency situation, which is defined as an “unforeseen situation that threatens an employee, customer, or the public; disrupts or shuts down operations; or causes physical or environmental damage”; or

(2) a change to a work schedule within 24 hours.

As currently drafted, the legislation would not apply to employees covered by a collective bargaining agreement. Beyond this limitation, the bill applies broadly to public and private employers and exempt and non-exempt employees. However, AB 2751 is in its infancy, and will likely undergo amendment to further clarify its scope. In fact, the first committee to analyze the bill recommended considering carving out exempt professionals and other amendments to clarify the definition of “employer,” “contact,” and “emergency.”

If You Don’t Turn Off That Computer Right Now…

Importantly, the bill does not afford a private right of action. Instead, employees could file a complaint with the California Labor Commissioner if there is a “pattern” of violations (i.e. three or more documented instances of their employer communicating with them outside of working hours). A pattern of such violations are punishable by a fine of no less than $100 (and the bill is currently silent on maximum penalties).

Is Anyone Else Changing the Channel on Workplace Communications?

While no other state has advanced comparable legislation, several countries have implemented laws similar to AB 2751, such as Belgium, Germany, France, Italy, and most recently, Australia. In 2018, New York City unsuccessfully attempted to pass a measure that would have prohibited retaliation against employees for refusing to respond to after-hours employer communications.

Supporters assert that this legislation is necessary to account for a so-called “cultural shift” in the U.S. workforce. The bill’s author, Assm. Matt Haney, defends his proposal on the grounds that the rapid rise of remote work and the use of smartphones has caused many employees to feel “tethered to the office.”

Opponents, such as the California Chamber of Commerce, believe that the bill is a step backwards for workplace flexibility. Rather than promoting the separation of work and home life, critics state that the bill will effectively subject all employees to a rigid working schedule and prohibit communication between employers and employees absent an emergency.

Workplace Solutions

Employers do not need to take any steps towards compliance yet. We will continue to keep you apprised of developments with this and other California legislation through the September 30, 2024 bill signing deadline. Our blog will provide a deep dive of the bills that ultimately pass and will affect your California workforce. Please check back in with us here at Cal Peculiarities, and you can also check out our Policy Matters podcast and newsletter for regular check-ins on California (and national) policy and legislative updates. Edited by Cathy FeldmanCoby Turner, and Elizabeth Levy