Creating a Right to Disconnect

Whether on the train, sitting at home, or walking through the park, people today are locked into their phone screens. Often the apparent addiction to mobile devices stems from employers’ expectations that workers be available at any time.

But studies have shown a relationship between a never-ending digital workplace and negative health outcomes. To improve workers’ mental and physical health, Paul Secunda of Marquette University Law School argues in his article that the U.S. Occupational Health and Safety Administration (OSHA) should adopt standards guaranteeing employees a “right to disconnect.”

Secunda shows how current regulatory approaches in France and Germany could be integrated into U.S. regulations. In France, employers often are prohibited from contacting employees after regular work hours. The French government created this prohibition through legislation. But this prohibition only applies to employers with fifty or more employees. The law also requires employees to answer a small amount of emails outside of work but as compensable time similar to a conference call outside of regular work hours. Secunda, however, questions the enforceability of the French law given that it does not create a private right of action.

In Germany, on the other hand, the government has not passed any type of legislation. Instead, employers have voluntarily adopted their own self-regulatory policies. Certain employer associations have partnered with the German Trade Union Confederation and the German Federal Ministry of Labor and Social Affairs to develop policies that fit the industry-specific needs of the employees and employers. Furthermore, the Ministry has banned any inter-staff communications outside of work hours, unless there is an emergency. But Secunda questions the incentives employers have in initiating only surface-level workplace regulations.

Currently in the United States OSHA has neither enacted nor proposed any type of regulation addressing the parameters of electronic correspondence outside the workday. Secunda argues that OSHA should adopt mandatory disconnection standards. He offers three main proposals for creating a right to disconnect.

First, he argues that OSHA currently has the authority to create an enforceable default disconnection rule through the General Duty Clause of the Occupational Safety and Health Act. The General Duty Clause requires that employers provide a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Secunda argues that some employers would violate this duty if OSHA issued some form of guidance interpreting electronic correspondence as a recognized hazard.

But he recognizes that various legal constraints on the General Duty Clause could restrict this sort of claim to a limited number of employers who already have policies related to after-hours electronic correspondence. Furthermore, Secunda warns that any protection found under the General Duty Clause would be insufficient in dealing with the broader problem. Instead, this regulatory path would provide workers only in the short-term with a method for reporting the overuse of after work electronic correspondence.

Second, Secunda argues that OSHA should create a permanent OSHA disconnection standard. This standard, Secunda argues, would inform employers and employees of the risks associated with the never-ending workplace. This standard would severely limit electronic correspondence outside of the workday. Employers, however, would be able to obtain a variance to the standard if that employer’s internal policies could provide equal or greater protection to workers as the OSHA standard. An employer who was granted a variance would not have to comply with an otherwise applicable permanent standard.

Secunda argues that such a permanent standard could integrate the best of the French and German models. The permanent standard would mimic the certainty and universality of the French system. But the ability to obtain a variance would be similar to the German model’s malleability across differing industries. Unlike in France and Germany, however, many employees in the United States work at-will and therefore have a relatively laissez-faire relationship with their employers. Secunda recognizes this distinction and argues that any right to disconnect should apply to all employees and not be tied to “level of education, sophistication, or compensation.”

Third, Secunda argues that no matter what kind of regulation OSHA adopts, it must also establish an anti-retaliation provision. Under any disconnection policy, Secunda argues, OSHA must make clear that whistle-blower employees would not be fired, or face other negative employment outcomes, as a result of coming forward. Secunda warns that without an anti-retaliation provision no regulatory approach would be effective.

Creating a right to disconnect from the workplace would positively affect employee “privacy, autonomy, productivity, and leisure,” Secunda concludes.

Secunda’s paper appears in the Notre Dame Journal of International & Comparative Law.