A new labor agreement reached in France requires employers in certain technology
and consultancy sectors to take steps to ensure employees are not plugging into
work on their free time. France has had a 35-hour workweek for several
years, and many believed it was being intruded upon by frequent out of office
distractions caused by email and other technology. To combat this, French
employers in these sectors are required to take steps to make certain that
employees completely disconnect outside of their working hours.
The invasion of work into personal lives is an international
phenomenon, but prohibiting after-hours emails is about as likely in the U.S.
as a 35-hour workweek. While the French labor agreement is unlikely to
find traction here, we are certain to continue seeing claims for overtime pay
by employees who stay connected to work through smartphones and other
devices. Employees who are “suffered or permitted to work” are entitled
to compensation even when the work is not authorized by the employer. With today’s technology, and the ability to remain at work virtually at all
hours, employers need to have policies that clearly spell out the company’s
expectations, especially with employees who are not exempt from wage and hour
laws. These employees need clear and lawful direction on when working
away from the office is authorized and how it needs to be recorded. When
an employee violates the policy and performs unauthorized services,
disciplinary action may be taken but should not include any docking of pay.
In addition to adopting a policy on remote access, employers
should review employees’ actual after-hours work practices. Where
technology creates problems it often also provides solutions. Because
employees are linking into work after hours electronically, it is easier for
employers to determine when and what work is being done, and for how
long. It is also possible to electronically limit access to email and
other resources when access is unnecessary.
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