Cross-Border Catch-Up: The Growing Global Trend of the Right to Disconnect

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Kate Thompson: Welcome to the Cross-Border Catch-Up, the podcast for global employers who want to stay in the know about cutting-edge employment issues worldwide.
My name is Kate Thompson, and I’m here with my colleague Lina Fernandez. We’re cross-border attorneys here at Ogletree. Today, we’re going to discuss a topic that is really interesting and getting a lot of attention this year, and that is the right to disconnect.
So, Lina, why don’t we start with an explanation of what exactly is the right to disconnect?

Lina Fernandez: Hi, Kate, and hi, everyone. Well, the right to disconnect basically refers to the concept of employees having the legal right to disengage from work-related communications and activities during non-working hours. So basically, employees can disengage from their work outside of working hours. This is outside their daily shift or during vacations or approved leave.
Kate, can you tell us why legislators are addressing this topic?

Kate Thompson: Yeah, definitely, and it’s so interesting to learn more about this right to disconnect, the laws are all around the world. So, I think that legislators are addressing this topic really because we have our phones with us all the time, and they’re connected to our workplace through email, through text messages. We might have apps on our phone that allow us to access different features of our work day basically all of the time.
So, because of the fact that we’re reachable almost anytime and anywhere, legislators around the world have wanted to basically address this topic, and post-pandemic working from home, it really became more prevalent and really difficult to ultimately unplug from work because our work tools are really accessible. A lot of us have our laptops at home, or maybe we bring our iPhones up to bed with us. So legislators around the world have issued laws about the right to disconnect to really create measures that are ultimately going to protect employees from stress and burnout because it’s really challenging to separate work and personal life due to the fact that we’re constantly connected by all of this technology that we have.
So the goal of this legislation is to really allow employees to have spaces where they can rest outside of their working hours without any, that’s really the goal, or very limited interference from their employer, so avoiding the message that might pop up at 9:00 P.M. at night when employees are trying to disconnect and maybe spend time with their family, relax just in a stress-free environment. In practice for employers, this really means that they’re not going to be able to impose discipline if an employee doesn’t answer their email or take a phone call outside of working hours.
So, Lina, I’m wondering, is all of this legislation the same?

Lina Fernandez: The legislation is similar; however, countries have distinguished the legislation based on different concepts. So, for example, certain countries apply the right to disconnect to all employees regardless of whether they’re, what we call here in the United States, exempt or non-exempt employees. Some other countries apply the right to disconnect only to companies when they hit certain threshold of employees. Countries may also apply the legislation only to employees who are 100% remote. And here, there’s a discussion as to whether the legislation may apply to employees who work in-office. And also, legislation may differ as to the type of measurements that employers may need to take to implement and ensure compliance with the law.

Kate Thompson: That’s so interesting. Now, do you know what countries have this legislation? I know this is a growing area, so it would be great if we can maybe walk through a couple of countries that actually have enacted this legislation and learn more about it.

Lina Fernandez: Sure. We can talk about a few examples of countries that have this right to disconnect legislation.
We’re going to start with Spain, for example. The legislation in Spain applies to all employees in Spain, regardless of the size of the company, and in Spain, companies, they have to develop internal policies and codes to ensure compliance and to address the specific needs of the workforce. And this includes not only developing the internal policies, but also including trainings as to the specifics of the policy. In terms of penalties, employers who fail to respect the right to disconnect from employees could face penalties from the labor authorities because employees would be unable to file complaints, and the labor authority may fine the company with penalties of up to 7,500 euros.
In Peru, for example, another country that has a right to disconnect policy, in this case, it applies to teleworkers, and they have the right to disconnect outside of their working hours because per the legislation, the employees need to be off work for a minimum of 12 continuous hours between a 24-hour period. And in the case of non-exempt employees, the right to rest increases to 16 hours in a 24-hour period.
The legislation in Peru provides that this right also applies specifically when the employees are on vacations and leave, and it provides that if there is an unexpected need or force majeure, basically whether there is imminent danger to people, if the property of the workplace is in danger, or it will cause damage to the continuity of the company’s activity, employers may be able to reach out to the employees even outside their working hours and this is an exception to the right to disconnect from employees.
Colombia, similar to Peru, employers cannot require their employees to be available or to work outside the working hours, except in cases of an emergency or situation of force majeure. In Colombia, specifically, the Constitutional Court declared that the right to disconnect is a fundamental human right. And in this case, the Constitutional Court declared that this right applies to all employees regardless of whether they’re in a managerial position or not.
In order to comply with Colombian regulations, employers need to issue policies addressing the way in which this right will be guaranteed and exercised, and those policies must include guidance on the use of work-related tools and any procedures for employees to file complaints when the employers are not observing the limitations to the right to work. If an employer does not comply with the employee’s right to disconnect, this could qualify as labor harassment, and in very egregious cases, companies may face penalties up to $1.8 million U.S.
So, of course, this is the worst-case scenario, but again, it’s important for employers to be mindful that this is not only about interfering with the employee’s right to rest outside of the working hours; it could end up or escalate to situations of labor harassment.

Kate Thompson: Wow, that’s so interesting, and a fine of up to $1.8 million is very steep.
Now, I can give two updates just in Thailand and Canada, which I also think are interesting and similar to what you’ve just talked about before in other jurisdictions. But in Thailand, the regulation on teleworkers actually provides that outside of working hours, employees have the right to refuse communication with their employer or supervisor through any means unless they have explicitly waived this right in writing, which I just think is really interesting.
And then, in Canada, specifically in Ontario, the right to disconnect from work, that’s going to apply to all employees at every level of the organization, which includes management and also the executive level, and it applies to employers who have 25 or more employees on January 1st of any year.
And also, it’s worth noting that in the United States, so California attempted to introduce a bill on the right to disconnect, and New York City and Washington have also attempted to pass similar legislation. Now, that was back in 2018, but given these changes that we’re seeing globally, you never know. More states in the United States might actually try to pass this legislation. And it’s interesting to hear about how other countries outside of the U.S. have this right to disconnect where, in the United States, it’s kind of the opposite for us right now.

Lina Fernandez: Yes, it’s very interesting as you mentioned, Kate, because we often see these enhanced protections to employees outside the United States. But if we look inside, as you mentioned, California, New York City, Washington, attempting to pass this legislation shows that there could be other states trying to catch up with this new trend.

Kate Thompson: Absolutely.

Lina Fernandez: We’ll see where we end.
Based on these scenarios, Kate, and all of these countries having this right to disconnect regulation, what do you think employers should do or encourage to do?

Kate Thompson: Yeah, I think that’s a great question. I would say that employers who have a global workforce, they should really determine whether any of the countries where their global workforce is located, do they have legislation around this right to disconnect? And if they do, then employers should work to implement policies and also provide trainings to their employees and managers about the specifics of the legislation, and this is really key for employees who are in different time zones, just as an example. So, I would say that employers will want to do a wide review of where are their employees located, and where do these laws about the right to disconnect actually exist?
So, with that being said, Lina, thank you so much for walking us through these updates. I think this is probably all of the time that we have for this episode, so thank you for joining us for today’s Cross-Border Catch-Up. Follow us to stay in the know about cutting-edge employment issues worldwide.

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