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California's AB 2751 Proposes "Right to Disconnect" for Employees

By Krista Hiner · Wed, Apr 10, 2024 1:36 PM

A new bill introduced in California attempts to establish boundaries between employees' work and non-work lives by codifying their “right to disconnect” from work communications outside of working hours.

California Assembly member Matt Hanley introduced Assembly Bill 27511 which requires employers to “establish a workplace policy that provides employees the right to disconnect from communications from the employer during nonworking hours…‘Right to disconnect’ means that…an employee has the right to ignore communications from the employer during nonworking hours…Nonworking hours shall be established by written agreement between an employer and employee.” Exceptions allow an employer to contact an employee (exempt or non-exempt) during nonworking hours for emergency or scheduling purposes. In addition, employees covered by valid collective bargaining agreements are excluded.

The spirit of the bill is admirable. The constant presence of technology, and expectation that everyone is always available, present growing obstacles to work life balance. In fact, many California workplaces attempt to provide balance by allowing a certain level of flexibility for both exempt and nonexempt employees to determine the precise hours during which work is performed. Critics of the bill point out that the bill undermines that flexibility, given that the proposed statutory language would require a written agreement that presumably eliminates flexibility. Certainly, if passed, it would prompt many employers to become necessarily more rigid regarding setting structured working hours. This reduction in flexibility will impact exempt workers (for whom hours are typically not tracked) more than nonexempt workers (for whom hours worked are tracked). Alternatively, because exempt workers are not subject to the same wage, hour, and overtime laws as their nonexempt counterparts, employers may instead react by setting extended, broad “working hours” for those exempt employees, effectively extending the time period during which the employee is obligated to respond to work communications. Where the worker is a properly classified exempt employee, the risk to an employer for doing so is minimal. 

The bill also fails to account for work-related communications from someone other than the employer. As drafted, the bill does not allow employees to ignore communications from third parties. For example, an esports team manager would not necessarily be statutorily permitted to ignore an after-hours communication from another esports team about a proposed player trade, and a games developer may be obligated to respond to such communications from a publisher.

ESG Law expects significant revisions to AB 2751 to address these shortcomings, and will continue to monitor the bill.

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