The French Right to Disconnect and the FLSA in a Mobile World

by Jim Vogele

If you and your non-exempt co-workers – i.e., hourly employees – are frequently using your mobile devices for after-hours work, keep in mind that you are entitled under state and federal law to be paid for that time.  And if your conscientious tending to emails, texts, and calls means that you’re working in excess of 40 hours in a week, you are, as hourly employees, entitled to overtime pay.  Anecdotal observations certainly indicate that a significant amount of off-the-clock work is being logged on mobile devices across Oregon and across the country.

Likewise, in France, one-third of employees have reported that they work off-the-clock, i.e. without compensation.  Much of this time working off-the-clock, of course, takes place in the evenings and on weekends.  Since 2000, France has had a legally-mandated 35-hour workweek, after which overtime must be paid.  And recently France has enacted another measure to address the phenomenon of the workplace increasingly interrupting the personal time of hard-working employees.  This European development may prove thought-provoking for American employers, for Oregon employment lawyers and for our clients.

Effective in 2017, French workers have a right to be free from employer interruptions in the evening and on weekends, i.e. they have a ‘right to disconnect.’  This new law is directed to employers with 50 or more employees and it encourages companies to draft policies addressing and discouraging use of email outside normal business hours.  Perhaps in recognition of the novelty of this innovation, compliance is voluntary, for now, and there are no penalties for noncompliance.  Some observers in France question the wisdom of the new law, given the demands upon companies that regularly work across time-zones, not to mention the flexibility that remote work offers to some employees.  Nonetheless, various French companies have already instituted policies calling for email ‘blackouts’ in the evenings, with some going so far as to effectively disable their email systems outside business hours.

An American counterpart to this new French law will likely never be passed.  On the other hand, Oregon overtime law and the federal Fair Labor Standards Act (“FLSA”) do provide similar protections.  In the United States our overtime laws – both federal and state – provide that if you are an hourly employee, or should be classified as an hourly employee, you are entitled to time-and-a-half overtime pay for any hours worked over 40 per week.  Thus, current Oregon law already provides incentives for employers to discourage off-the-clock work.  As is often the case with well-intentioned legislation, however, the devil is in the details of enforcement.

Under the controlling Mt. Clemens standard, time spent on mobile devices after hours is compensable working time

The Mt. Clemens standard, which we’ve discussed elsewhere, provides that all time “suffered or permitted” counts as compensable work time.  This means that any and all time an employer allows employees to work is time for which employees are entitled to be paid, including overtime pay if over 40 hours in a week.

Our experience over decades of employment law practice suggests that employers frequently tolerate their employees working off-the-clock.  Tolerating, of course, is not the same as encouraging.  A minority of employers actually encourage their employees to engage in unpaid off-the-clock work.  However, regardless of whether it occurs through tolerance or encouragement, off-the-clock time is compensable, and there is no exception for the use of smartphones or computers.  While the new French law attempts to discourage employers from requiring the use of devices 24/7, the FLSA doesn’t seek to regulate our free-market freedom to work after hours, during evenings, weekends, and on holidays.  But the FLSA does insist that employers pay hourly employees for all that time.

Counting the hours

On the one hand, it may seem difficult to keep track of intermittent or random use of cell phones and laptops.  In reality, it’s not so hard.  For one thing, there is a record of the time when emails were sent or when telephone calls were made; and with regard to calls, our phones maintain a precise log of the time we spend on them.  Thus, a much more accurate accounting of time worked is possible than formerly was the case when employees’ efforts in the evenings and on weekends tended to be spent poring over paper documents, handwriting notes, or making phone  calls on landlines that, if the calls were local, resulted in no record of the total time spent.

While there is a concept in wage and hour law called de minimis time (see, e.g., cases discussing “donning and doffing”), the total amount of time that American workers spend performing work-related duties on mobile devices is hardly minimal.  For example, an employer with 120 employees working just 5 minutes a day off-the-clock obtains the equivalent of 10 hours of free labor per day.  This is not only unfair to employees but also gives a scofflaw employer an unfair competitive advantage over its law-abiding counterparts in the marketplace.

The DOL is on the case . . . or soon may be

In 2015, the U.S. Department of Labor (“DOL”) indicated that as part of its regulatory agenda it would publish a request for information (“RFI”) designed to gather data and viewpoints from stakeholders concerning cell phone usage in the workplace.  The idea was that the DOL might rely upon this information to shape new rules under the FLSA regarding use of portable devices by non-exempt employees.  The DOL postponed issuing the 2015 RFI, however, because of the pending implementation of new white collar exemption regulations.

Again in 2016, the DOL announced that an RFI would be issued in the late summer, but this RFI also appears to have been delayed (as of this writing, in early 2017), perhaps because of the ongoing legal challenges to the new white collar exemption regulations.  In November 2016, a federal judge in Texas issued an injunction barring implementation of the new rules that were scheduled to take effect on December 1, 2016.  That case is currently on appeal in the federal Fifth Circuit Court of Appeals.  The Obama administration’s DOL initiated the appeal; what happens to that appeal under the new administration remains to be seen.

In any event, it is safe to say that the DOL has shown an interest in the issue of the significant impact that mobile devices are having on the time worked by hourly employees, and, regardless of the DOL’s agenda, we encourage hourly employees to bring such issues to the Oregon overtime attorneys at Vogele & Christiansen to discuss obtaining legal advice and representation.

Conclusion

France has made a decision that as a society the French people will generally be better off if workers leave their work behind at the end of the day.  This policy choice does not necessarily fit comfortably with the American viewpoint that long hours are required for peak performance and that we are more productive if we work long hours.  This American norm may be debatable, however, and even without reference to studies on the matter, we can generally agree that workers should be compensated for their efforts on behalf of their employers.  How we spend our free time is a matter of choice, but that our free time is of value is something most of us will agree upon.

Many companies are proactive in keeping their workers from working after hours.  Others, however, are not so successful in enforcing the boundaries of a work day, or they tend to look the other way.  Either way, when hourly employees check emails or make calls and texts in the evening or on the weekend, they are entitled to be paid for that time, including time-and-a-half compensation for overtime work.  This is important because overtime compensation increases the take-home pay for your family.  But this is also important as a matter of policy.  When employers have to pay for all the hours their employees work, they tend to enact policies limiting the expectations that workers will be engaged 24/7.  There is a good argument to be made that such policy choices result in happier, more productive employees and in an overall healthier workplace.  In the U.S., we may not have a ‘right to be disconnected,’ but we still may benefit from the French experiment.