New York City is often on the fringe.  From its fashion to its tall buildings to its restaurants, the Big Apple likes to be cutting edge.  Even when it comes to its laws.  Really, who can forget the controversial proposed ban on “big” sugary sodas?  Fortunately, that specific attempt to regulate personal choice was ultimately stopped in its tracks. 

Nonetheless, the City has done it again with a proposed legislation to make it illegal for employers to require employees to check emails or answer text messages “after hours.”  That is right, the City that “never sleeps” wants to legislate “work-life” balance because individuals apparently are unable to regulate themselves.

The Right to Disconnect Law was introduced to the New York City Council on March 22, 2018.  The law seeks to amend the New York City Charter and the Administrative Code of the City of New York to permit employees to “disconnect” from electronic communications during non-work hours without fear of repercussions from their employers.  But, what does that really mean?  It means that employees will have the legal right to IGNORE their bosses after hours.

The law would apply to both non-exempt and exempt employees, and it would cover part-time and full-time employees employed within the city of New York so long as they work more than eighty hours in a calendar year (not a high threshold).  Covered employers would be those with ten or more employees.  Notably, New York City and State workers are not covered under the law, and neither the City nor the State are covered employers.  (It is even more infuriating when the government passes laws to cover private employers and then exempts itself.)

The law provides an exception to the right to ignore – that is, in “cases of emergency.” But, the proposed law does not define what constitutes an emergency.  And, if the employee is disconnected, how would he or she know that there was an emergency?

Of course, like every other employment law passed in recent time, employers would be required to have a written policy and post a notice.  Employees may file complaints up to two years after the employee knew or should have known of the alleged violation, which is an unnecessarily long limitations period.  (What will really happen is that an employee will be disciplined or fired for some legitimate reason and just happen to remember that their boss emailed them on off-hours that one time, a year before, and file a complaint.)  Employers face penalties of $250 for each instance of an employee being required to access work-related electronic communications outside of the standard work hours.  Employees could recover damages including backpay, penalties, equitable relief, including reinstatement.

Now, let’s be honest, we all currently have the individual freedom to disconnect from technology.  Even with that freedom, most of us do not disconnect.  Indeed, according to this article, “Americans check their phone on average once every 12 minutes – burying their heads in their phones 80 times a day, according to new research.”  We hardly disconnect, so what makes it likely that New York’s law telling New Yorkers that they can disconnect will do any good?  In the city that never sleeps?  In reality, it will simply mean that when an employee is on his or her phone (checking Facebook, Instagram, Twitter, reading the news, or texting with friends on off-hours) and an email comes in from work, the employee can IGNORE it until he or she is back on the clock.

And, if the employee ignores the work email during off hours, the employer cannot do anything about it.  In fact, it is unclear whether the mere sending of the email may be problematic.  Does the boss have to put a disclaimer on every communication that reads:  If you have chosen to exercise your right to disconnect, you need not respond to this email until your normal work hours.  The proposed law prohibits retaliation against an employee for exercising or attempting to exercise any right under the law.  That means that the employee cannot hold the fact that the employee did not respond to emails during off hours against the employee in any performance reviews, compensation decisions, or any type of comparison with other employees with regard to employment decisions.

Let’s look at an example of how the law may play out:

Jack is an average salesperson at a NY Company.  He works his 40 hours a week and not an hour more.  He is paid a nice salary of $150,000.  He wants to exercise after work and travel on the weekends.  Because of the Right to Disconnect Law, he never responds to emails from his boss, except within the confines of his work day (9:00 a.m. to 5:00 p.m.), even when a big proposal or project is due.  This makes it difficult to get the work done, and his boss has to ask others to pitch in to make up for his slack.

Diane is also an average salesperson at the same firm, making the same salary.  But, she is eager to excel and advance in the Company and is a true team player.  She shows her dedication to the job and desire to go above and beyond by being available and pitching in.  She regularly answers her boss’s questions via email after hours and on the weekends.

When review time comes around, the boss wants to give Jack a negative performance review and no increase in salary based on the fact that Jack ignored emails on off-hours.  He wants to give Diane a generous increase for being available and always answering his emails on the weekends.

The above-scenario, under the Right to Disconnect Law, would likely land this company on the wrong side of a retaliation claim by Jack – which is ridiculous!  It punishes the “go-getter” employee and the employer who wants to reward that employee.  The law is another ill-conceived attempt at legislating behavior and human nature.

We all want more work-life balance.  But the government cannot legislate it into our lives.  Let’s hope this proposed law sees the same fate as New York’s attempt to legislate our ability to purchase a very big sugary soda!