SHRM Opposes California Right-to-Disconnect Bill at Hearing

SHRM and the California State Council of SHRM (CalSHRM) strongly oppose California Assembly Bill 2751 due to its overly broad approach to addressing a workplace challenge, testified Michael Kalt, government affairs director for CalSHRM, at an April 17 hearing before the California State Assembly Committee on Labor and Employment.

The bill grants employees the right to disregard after-hours communications from their employers except in emergencies or regarding scheduling matters.

“Our core concern is that the bill’s one-size-fits-all approach will have negative effects on both businesses and employees and put California workers at a competitive disadvantage,” Kalt said. “Businesses need to respond quickly to operational demands, and this sometimes requires after-hours communication, which is compensated. Eliminating this common business practice could jeopardize the competitiveness of Californian businesses at home and abroad.”

AB 2751 also raises significant concerns about enforceability and creates new levels of administrative burdens on employers, Kalt added. The bill lacks clear definition for key terms, he said. “This ambiguity could lead to confusion for everyone, potentially leading to increased legal challenges and employee stress.”

Kalt also said the bill does not adequately recognize the vastly different realities various industries and roles face. For example, what constitutes an emergency varies greatly between tech startups and health care providers.

Preserving the ability to communicate across time zones is vital, he noted, and overall, AB 2751 would put California companies at a disadvantage.

Bill Sponsor’s Remarks

The bill’s sponsor, Assemblymember Matt Haney (D), said he was committed to working with bill opponents to resolve concerns.  

He said AB 2751 “recognizes employees are entitled to downtime with families” and should not be retaliated against for choosing to disconnect.

The bill requires that employers have a policy, which can be flexible, he said: “The policy could be a lot of on-call time with the employee if that’s what the job dictates.”

The bill would not prevent an employer from sending an employee an email or text message after hours, Haney said. However, it would prevent the employee from being retaliated against if they choose not to reply.

Without this bill, most employees would feel obligated to respond, Haney said, adding, “24/7 availability does not correspond to high productivity.”

The bill would also provide clarity on when people can expect time to rest, recuperate and be with their families, he said.

A dozen countries—including France, Italy, Portugal and Spain—already have such requirements.

Committee Members’ Support and Concerns

Some Labor and Employment Committee members voiced support for the bill.

“American people live to work instead of work to live,” said Assemblymember Alex Lee (D). “Other nations have adopted” right-to-disconnect legislation, and “their economies haven’t collapsed.”

Assemblymember Christopher Ward (D) said he appreciated Haney raising the issue. “We need to have a strong work-life balance,” he said. However, “to legislate in this area could get tricky.”

While Ward wouldn’t want an employee to be punished when a response to an email or text could have waited, he said he also wouldn’t want an employer to be punished. Ward expressed concern that the bill might “open up lots of complaints by the [California] Labor Commissioner.”
Haney said the commissioner would step in “only if there were a pattern of violation.”

Ward responded that while he supported the bill at the committee level, he hoped Haney would
“think about potential violations and do so carefully and with flexibility in mind.” Ward added that the bill needed to “try to get it right” and not have the unintended consequences outlined by bill opponents.

Businesses Foresee Problems

“I have clients that are very concerned about the impact this bill could have on their business,” said Ann Wicks, an attorney with Withers in San Francisco, in an interview with SHRM Online. “They see the proposed laws as yet another layer of control and difficulty that they have to navigate—and one that conflicts with what their employees want, which is flexibility and autonomy in their work schedules.”

While the bill might be attractive to some employees, it will likely hasten some employers’ departure from California, since they won’t face the same level of scrutiny or restriction in other states, she said.

Service-based industries need to be responsive to clients, Wicks noted. “Delays in response time can result in the loss of the client,” she explained.

For example, it might be common for a customer who works in a different time zone to reach out to a California-based employee with an urgent request. Maybe the information in a report or order is incorrect or incomplete, or there’s a specific deadline and the data hasn’t been received.

“If the customer needs the information before 8 or 9 a.m. because of a business meeting or pitch and the data is critical to that process, they need to be able to reach their contact and solve the problem,” Wicks said. “If the request comes in at the end of the business day or after the day has ended, the right-to-disconnect law means the employee likely won’t see the query or be able to respond and solve the customer issue because it is outside their scheduled working hours.”

The no-contact rule would likely have caused the employer to silence or shut down phone and computer access to the employee who received the message, so the employee would not even know of the urgent need until the deadline had passed, she added.

“While the bill allows exceptions for emergencies, the above scenario would not meet its definition of an emergency,” Wicks said. “Yet the business would likely suffer harm, which could be financial and reputational, up to and including loss of the client.”

While on-call help could address this problem, that solution doesn’t recognize the increased cost to the business or how specialization within business roles may render an on-call person unable or unqualified to help, she said.

There’s no allowance in the legislation “for the type of emergencies that can impact a service-oriented business where there’s a business issue that can result in financial harm, even though the issue doesn’t physically threaten someone’s safety or prevent the employer from opening for business for the day,” Wicks said.

Moreover, the bill’s definitions of emergency and scheduling are problematic because they are inflexible, she added.

For scheduling, contact can be made under the bill for changes within 24 hours. “While that may address the need to call someone in if another employee is going to be sick or absent, it doesn’t recognize the national and international nature of business,” Wicks said.

If an employee has a flight across the country on Friday to attend a meeting and they learn on Wednesday evening that the meeting is getting moved to the following Monday morning, the 24-hour rule wouldn’t allow after-hours contact, she said. “Yet most employees would want to know right away that their schedule was being disrupted in such a manner—and in fact they may need the time to make arrangements for personal needs, such as pet care, child care [or] private appointments.” So the restrictions could end up inconveniencing employees as well.

“We can all agree that it is important for workers to have time off work and for employers to be respectful of nonworking time,” Wicks said. However, if the right-to-disconnect bill is enacted, “workers and managers alike will likely find the inflexible nature of the rules unduly restrictive and problematic.”