Another change to New York City’s labor and employment laws is under consideration by the City Council. This one would impact employers’ abilities to communicate with their employees after hours.
The Disconnecting from Work Bill would prohibit employers with 10 or more employees from requiring their employees to access work-related electronic communications (e.g., email, text messages) during non-working hours, except in an emergency. Employers cannot retaliate or threaten retaliation against any employees for not responding to electronic communications, or else face a possible fine. The current draft of the bill does not contain a private cause of action, but, instead, employees would file complaints with the Department of Consumer Affairs which would then investigate and prosecute the complaints.
Employees excepted from this provision include:
- On-call employees whose terms of employment require them to be reachable 24 hours a day on days they are working
- Work-study employees
- Independent contractors
If passed, New York City would be the first United States municipality to enact a law requiring employees to be unreachable by electronic means during non-working hours, including weekends, vacations and holidays. Currently, France is the only place where employers are prohibited from requiring their employees to be reachable by company email or text message when they are not on the clock.
The law would also fall in line with a series of other recent legislation that has set New York City apart from many areas of the United States. These laws include:
- Fair Chance Act – A series of regulations prohibiting city employers from investigating a job applicant’s criminal record until a job offer is on the table
- Credit Check Law – A 2015 bill that made it illegal for city employers to look into a job applicant’s financial history for most jobs (exclusions include police and peace officers, and executive-level positions involving control over finances or sensitive information)
- Local Law 67 – A 2017 bill that banned employers from asking applicants for their salary history
- An amendment to the New York City Human Rights Law requiring employers to put final judgments on reasonable accommodation requests from employees in writing (effective October 15, 2018)
- A package of 11 new laws passed on April 11, 2018 that include an extension of the statute of limitations for gender-based harassment claims, extending gender-based harassment laws to include all city businesses, requiring businesses of 15 or more employees to hold annual sexual harassment training and requiring sexual harassment policy posters be displayed in a conspicuous part of company workspace
For city employers, the Disconnecting from Work Bill may require some fundamental changes to how they approach operating their businesses. For starters, they should consider ending the practice of allowing remote access to company email accounts. The risk of possible infractions would be too great.
If an employee is using paid leave hours to deal with a personal matter (e.g., illness of self or an immediate family member, a birth or adoption of a child, a death in the family), an employer will not be able to electronically reach the employee during that time, unless there is an emergency. This could pose a problem for employers, especially if the employee holds an important position within the company. Employers will have to develop strategies for handling day-to-day problems while their employees are on paid leave.
The bill defines an emergency as “a sudden and serious event, or an unforeseen change in circumstances, that calls for immediate action to avert, control or remedy harm.” However, each employer will have to determine which specific events constitute an emergency at their company, and which employees would need to be notified when these events happen. This may require employers to revisit their organizational charts to see who would be the person(s) to contact in the event of a specific emergency and write policies into their job descriptions as to how the employee(s) would be contacted. The bill would also require employer to identify the usual work hours for different categories of employees and the different types of paid time off.
We are closely monitoring the status of the Disconnecting from Work Bill. If the City Council approves this bill, it is important that employers contact a labor and employment attorney for assistance in interpreting the implications and drafting new policies to ensure compliance.
Michael W. Macomber, Esq. and Nicholas A. Devyatkin, Esq. are attorneys at Tully Rinckey PLLC. Macomber is a Partner and the chair of the firm’s New York State Labor and Employment Practice Group. Devyatkin is a New York City-based labor and employment attorney at the firm.