By Roselyn Sands and Nicolas Etcheparre, EY Société d’avocats
As usual, French labor and employment law continues to be at the heart of French legislative activity with numerous changes in the past months. Yet one topic has attracted the most media attention and has been one of the most recent trending subjects: the “right to disconnect” from mobile devices outside of working hours.
This new “right to disconnect” is applicable since January 1, 2017. Essentially, it requires employers and employee unions to engage in collective bargaining to negotiate the conditions under which employees will be entitled to disconnect from their mobile devices outside of working.
The main purpose of this law is to ensure that working hours are complied with, and to protect the health and safety of employees, by allowing them to actually rest in between work days, on weekends and during holidays.
What is the right to disconnect?
One of the main issues brought by this law is that it does not specify what needs to be understood as the right to “disconnect”. When asked to provide a specific definition the Government explained that the right to disconnect was, for instance, “the right for an employee to not answer emails outside of working hours”, and that in fact, this new right would “allow companies to manage this issue and adapt to new and more modern way of working”.
French legal doctrine has defined this right as the right for employees “to not always be reachable, for uninterrupted periods of time, for professional reasons. This right entitles employees to be temporarily disconnected from the digital tools that allow them to be reachable for professional reasons (e.g. smartphones, emails, internet)”
To ensure that this new right is complied with, employers will have to implement measures allowing employees to be disconnected outside of working hours. Such measures could include technical limitations, such as smartphones that no longer receive emails after working hours, or managerial seminars, aiming to empower employees to not feel pressured to answer work related requests outside of working hours.
Therefore, the right to disconnect needs to be understood as an obligation which is shared by both the employer, who needs to ensure that employees are afforded the right to disconnect, and by the employees, who must make use of the right they are afforded.
New obligations for employees: the “must dos”
This new right appears in two different sections of the French labor code.
It appears first as a subject that must be discussed by employers on a yearly basis with the employee unions elected in the company during the “Négociation Annuelle Obligatoire” (Yearly Mandatory Negotiation).
The law specifies that the employer and the unions must discuss, in good faith, the conditions under which this new right will be afforded to employees and what measures will be taken to ensure that it is complied with. If both parties cannot find an agreement, employers must implement a unilateral plan aiming to train and sensitize employees to “reasonable use of digital tools”.
The new law does not provide for a specific sanction if no agreement is reached and no plan is implemented. However, in cases where employees make claims for unpaid and unreported overtime related to their working after hours through digital tools, judges will be more likely to penalize an employer who has failed to implement such a plan.
The right to disconnect appears second in the section related to employees working under a fixed number of days scheme (managers and above types) as they are the employees most likely to suffer from “hyper-connectivity”.
Under the new law, the fixed number of days scheme must now specify the conditions under which employees will be entitled to disconnect from their work. Failure to do would render the scheme null, and such employees would therefore be considered to work only 35 hours per week, with overtime pay for each additional hour worked.
Some food for thought on “nice-to-haves” best practices
There is no “one shoe fits all” solution regarding this new obligation/right. The manner in which employees are entitled to benefit from their right to disconnect will depend on several factors, such as the type, size and international exposure of the company. Good practices on this matter would therefore require a two stepped approach.
First companies should run an internal diagnostic on the following issues that should be treated by a potential plan:
- Does the company already have a policy on the use of digital tools? Has a plan already been implemented?
- How are employees equipped (e.g. smartphone and / or laptop, Bring Your Own Device (BYOD))?
- Do employees have a large autonomy in working time? Do they use their holidays or do they end the year with untaken holidays?
- Does the company have special data protection needs (e.g. confidentiality, industrial secrets)?
- Can the company cease all activity / electronic communications over a certain period of time? Are employees required to be constantly reachable?
- Is the company’s activity oriented towards countries whose time zone is very different?
Then, based on this initial diagnostic, employers may consider three approaches.
- Radical and unilateral actions,: closing of email servers, blocking of emails during certain periods (nights and weekends for example);
- Driving policy: internal regulations, policies enacted in the company authorizing employees not to respond to solicitations during certain periods
- Culture change actions: trainings of employees, managers, good practices (e.g. avoid replying to all the recipients of an e-mail when it is not obligatory, affix a specific mention in the subject of the mail when the Response may be postponed).
Although the right to disconnect seems like a strange topic for legislation, all the media has taken interest in this and appear to agree that it is a novel and very important measure to protect employees.
This right to disconnect must be viewed as a means to lead a necessary dialogue on digital tools as they continue to invade employees’ lives and blur the line between working time and non-working time.
Non-compliance with this legislation exposes companies to wage and hour risks, in particular with regards to overtime, but also to health and safety risks, in particular in cases where employees can prove that due to excessive connectivity they suffer from undue stress and emotional complications.