Email Employees and Break the Law

By: Bob Goldberg, RSPA General Counsel 

Have you recently looked a people in a restaurant, airport, on a bus, or train? They almost all have one thing in common. They are staring at the screen on their mobile device. Americans have become addicted to mobile technology. Once presented as freedom from an office, mobile technology has only served to extend working hours, disrupt vacations, and establish a need to be in constant communication.

Technology has been a tremendous asset to the point-of-sale and payment industry. Resellers are able to instantly communicate with employees. Salespeople can reach out to customers. Technicians can seek help and guidance while working on equipment. Reminders can be sent to employees regarding duties for the next day. Technicians can be dispatched without a conversation. On and on it goes demonstrating that we have become tethered to our mobile devices.

In the employment area twenty-four-hour communication and response obligations may be coming to an end. What appears to be the beginning of a trend a New York City Councilman has introduced a bill that would prohibit employers from requiring employees to check and respond to work related electronic communications outside of normal work hours. The bill would apply to private employers in New York City with ten or more employees. Although the proposal is limited to New York City, it certainly will be considered throughout the United States. France was the first country to allow employees to ignore off hours emails or messages.

The bill exempts emails and texts in the event of an emergency situation. Emergency is broadly defined to include a “sudden or serious event, or an unforeseen change in circumstances, that calls for immediate action to avert, control, or remedy harm.” Clearly a down point-of-sale system or the day’s receipts would not qualify. If an individual’s job description requires them to be “On Call” or they are an Independent Contractor, the limitations on contact would not apply.

The proposal requires a written policy that establishes an employee’s usual work hours and non-work hours. Employers would be required to provide each employee with notice of their right to disconnect from non-work hour communications. Failure to provide notice could result in a $50.00 civil penalty for each employee to whom notice was not provided. For every instance an employee is required to access work related electronic communications outside of work hours there would be a $250.00 penalty. In the event an employee was terminated for refusing to respond to electronic communications there would be a penalty of $2,500.

The world has become a 24/7 place with technology never allowing you get away from your business. As employees complain about constant communication legislators are listening. Work has spilled into personal lives and there should be division. It is important to be able to draw a clear line between work and free time. Most employers do not abuse communication, but it always those that do which result in legislation. RSPA will monitor this issue and keep members advised as to any provisions enacted. RSPA will also develop suggestions for members that will ease any impact on the industry.