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19 April 202411 minute read

A look at global employee disconnect laws for US counsel

In today's interconnected world, where the lines between private and professional lives are blurred and working from home is more common than ever, it can be difficult to unplug from work.

Lawmakers are taking note, with more jurisdictions around the world implementing some form of a right to disconnect for employees. US companies with global operations are encouraged to review new legal obligations and their impact on global workforce management, operations, and compliance risk. 

US employers could also see new obligations here at home. A California bill introduced on April 1, A.B. 2751, would require certain California employers to establish a workplace policy that provides employees the right to disconnect from communications during nonworking hours – with certain exceptions for emergencies or scheduling.

This article examines existing right to disconnect laws – which vary in terms of covered employees, implementation requirements, and enforcement – and potential approaches for US companies managing a global workforce.

The drive behind implementing the right to disconnect

The implementation of the right to disconnect varies by country, but each has grown out of a similar challenge: protecting workers from burnout in an age where digital boundaries are nearly nonexistent.

From a US perspective, this might seem like government or regulatory overreach. The US differs from many countries insofar as there are generally no limits to how many hours a person can work – provided any overtime is paid and the employee is not under 16 – and there is no federal right to paid vacation. There may of course be state and/or local-based restrictions – and requirements for breaks and time off between shifts.

In contrast, other countries have regulations that afford greater employee protections, such as health and safety obligations, that can require safe working hours.

Most notably, there is a European Union-wide directive on working duration – generally no more than 48 hours including overtime per seven-day period – and local country legislation that offers more substantial protections.  

Most other countries across the globe likewise restrict how many hours an employee can work. However, even prior to the COVID-19 pandemic, there was a blurring of boundaries between work and home life – particularly for knowledge workers – meaning that these limitations on working hours were not always effective in protecting an employee's downtime.

And so, enter the right to disconnect. As discussed below, implementations vary, but in general, the right refers to the legal entitlement allowing employees to refrain from engaging in work-related communications, such as emails, calls, and messages, outside their standard working hours.

The aim broadly is to draw a clear boundary between professional duties and personal time, ensuring that workers can fully disengage from work to rest, recover, and attend to their private lives without the pressure to remain constantly connected to their workplace.

Differing approaches

Countries with penalties for noncompliance

Spain and Portugal are two countries that have penalties for noncompliance with the requirements. For Portugal, the right is based upon working hour restrictions and a protection from digital work interfering with employee rights. Employers are legally mandated to avoid contacting employees outside of working hours, with noncompliance an administrative offense punishable by monetary fines.[1]

Similarly, in Spain, failure to comply with certain aspects of the requirements can lead to monetary fines. Spain was also one of the first adopters: It recognized some form of digital disconnection right in 2018.

Since then, the right has evolved, most significantly in 2021, with the passing of the Act on Digital Rights, guaranteeing employees a right of digital disconnection, the right to rest, and the right to a work-life balance.

In practice, this means employers in Spain must have a guide or policy regulating the exercise of the right to digital disconnection – which sets out training and actions needed to ensure reasonable use of the digital tools as well as any existing rules on availability. There may also be requirements to provide that guide or policy to employee representatives, if any.

By contrast, the requirements in Ireland, which are set out in a Code of Practice on the Right to Disconnect, are not legally binding, and there are no direct financial penalties for noncompliance. Compliance is encouraged in an alternative way – the code places an onus on employers to ensure employees can disconnect, and an employer's compliance or noncompliance is admissible as evidence in legal proceedings.

Telework and remote work protections: Latin America and beyond

In the wake of the digital transformation, Latin American countries such as Argentina, Chile,[2] Peru,[3] and Mexico,[4] and some other nations like Thailand[5] and Italy, have tailored the right to disconnect to teleworkers and remote employees. For many of these countries, the protection appears to be granted against the backdrop of overwork as a health and safety issue.

To take an example of this approach, in Peru, nonexempt teleworkers are entitled to disconnect outside their working hours – for a minimum of 12 continuous hours within a 24-hour period – and during vacation and leaves, unless there is an unexpected need or force majeure.[6] 

Similarly, in Argentina, teleworking laws implemented there offer employees a right to virtual disconnection, which aims to avoid employees being contacted during nonworking hours, while on leave or during absences for illness.

For Thai remote workers, employees are not obliged to respond to any form of communication outside their normal working hours, except where the employee has given prior written consent.

Differing coverage by employee classification or total employee headcount

In some countries, the right to disconnect only extends to nonmanagerial, or similar to what we would consider in the US as nonexempt, employees. In others, it extends to managerial employees.

For example, in October 2023, the Colombian Constitutional Court declared the right to "labor disconnection" as a fundamental human right for all employees, including serving in public capacities and individuals in managerial positions.[7]

In other countries, the requirements only apply to employers with a certain number of employees or more. One of the first countries to implement a form of the right to disconnect, France, introduced the so-called El Khomri law, which applies to companies with at least 50 employees and provides employees with a right to disconnect from electronic devices during their rest time.

In the French context, this right means that employers cannot hold employees accountable for not answering emails or phone calls outside working hours, nor can that behavior be considered as misconduct.

For companies employing at least 50 employees and with trade union delegates, the right to disconnect is a topic that is part of the mandatory negotiation on professional equality and the quality of working conditions. In the absence of mandatory negotiation on this matter, employers are required to provide internal rules related to this subject.[8]

The Belgian requirements also apply by employer headcount – companies with at least 20 workers, either with a collective bargaining agreement or work regulations, are required to include certain provisions on the right to disconnect in those work rules or CBA, as applicable.  

Under the concept of the right to disconnect as implemented in Belgium, employees cannot be forced to respond to calls, messages, or emails after their working hours, nor can they face adverse treatment for not responding.[9]

Locales that require employers to adopt policies

Luxembourg and Ontario, Canada[10] place the responsibility on employers to ensure employees disconnect, not through granting an enforceable right to employees, but by requiring employers to implement systems through applicable collective bargaining agreements or policies to ensure respect for the right.

Ontario's requirements, established by amendment to the Ontario Employment Standards Act, follows this softer approach. All employers who have 25 or more employees are required to implement a disconnecting from work policy,[11] but there is significant flexibility in the content of that policy, and employers are not required to create a new right for employees to disconnect from work.[12]

Novel employee-enforced rights: Australia

The latest country to implement laws around the right to disconnect, Australia, gives employees a statutory basis to enforce the right, and the tools to take legal action if it is not respected.[13]

The Australian version grants employees an enforceable workplace right to refuse to monitor, read, or respond to contact – or attempted contact – from an employer or a third party outside their ordinary working hours, unless such refusal is unreasonable.

The changes also prescribe a process for resolution of disputes between employers and employees about the right to disconnect, and should the applicable tribunal, the Fair Work Commission, make a stop order requiring the employer to cease unreasonable out-of-hours contact, breach of such an order by an employer could result in financial penalties.

Implications for US in-house legal counsel

US legal teams are encouraged to stay attuned to international laws on working hours and the right to disconnect. This awareness is valuable for compliance, operation alignment, and setting clear expectations, especially for roles involving global teams.

However, beyond mere compliance with pay and working hour restrictions, in-house counsel are encouraged to understand how this right and differing local requirements interact with business needs.

For example, time zone variances might mean setting clear expectations with managers and employees that responses are not required outside of working hours, and that, for more intrusive communication methods, such as instant messaging, managers are instructed to be mindful of time zone differences and limit interaction with employees when outside the employee's working hours.

In addition, clarity in role expectations concerning out-of-hours communication in recruitment policies and procedures becomes crucial.

In practice, and taking a review of the requirements from a global perspective, for those countries where there is some form of right to disconnect, it generally requires companies to have a policy in place that covers the following: the company's approach to disconnect from work, and expectations for employees when working outside core business hours and during leave, and the use of IT tools outside working hours.

Such policies may also be the cornerstone to ensuring a broader culture that respects work-life boundaries. It should be reinforced to training managers that upholding these rights is not merely a legal formality; it is a practical measure to ensure cultural coherence across geographically dispersed teams.

Furthermore, legal counsel are encouraged to recognize that the right to disconnect intersects with health and safety regulations – and, in many jurisdictions, overwork is classified as a health hazard that can lead to severe repercussions, including investigations by regulatory bodies.

Each of these perspectives consolidates the value for US in-house legal teams to remain vigilant, proactive, and culturally sensitive in advising their firms.

A comprehensive understanding of both the legal and cultural implications of the right to disconnect ensures corporations can navigate this global transformation in work culture while safeguarding employee welfare and maintaining legal compliance.

The horizon: What's ahead

A European Parliament resolution has called for action to safeguard the right to disconnect as a fundamental labor right in the digital era – potentially catalyzing change at the broader EU level.[14]

However, looking back to the US specifically, despite periodic discussions here, federal implementation remains uncertain, although it is not outlandish to think we might see this type of right enacted at a state level.  

The California bill introduced this month by Assemblymember Matt Haney defines the right as the right for an employee to "ignore communications from the employer during nonworking hours."

It appears to be a hybrid of the Ontario approach – that is, requiring employers to establish a policy on the right, but also includes some teeth for enforcement: fines for employers that have a pattern of violating the requirements.

It is yet to be seen whether the bill will gain the traction required to be implemented. It has already been decried on social media by many in Silicon Valley and may be unlikely to become law – but it is certainly one to watch in the coming weeks.

To sum it all up, the right to disconnect is an example of the evolving nature of labor laws in the face of technological advancements, and how governments are grappling with the intersection of productivity, health, and privacy.

As we march further into the digital age, governments will likely continue to experiment and legislate, and novel approaches will likely arise. In a world increasingly aware of the need to unplug, a company's ability to harmonize productivity with the humanity of its workforce is not just beneficial, but essential.

This article was originally published in Law360.

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