A new bill presented to the New York City Council would allow private employees in the city of New York to disconnect from work-related electronic communication during non-work hours, except in cases of emergency. While these employees could still have the option to respond, they would not face any form of retaliation — any threat, discipline, discharge, demotion, suspension or reduction of hours — for doing so. As a college student, with entrance into the workforce in my horizon, I would love to see this bill pass and successfully separate work and home life. However, even if this bill is passed, its incomplete structure and ambiguity would result in inefficiency and potentially cause more harm than good.
Sponsored by Councilman Rafael L. Espinal Jr., the bill would be added as an amendment to the New York City charter and the administrative code of the city. The local law would not apply to any federal, state or city governmental employers, or businesses that have less than ten employees. Affected employers will be required to adopt a written policy including: the usual work hours for each class of employees under the employer and the categories of paid time off — which will be considered non-work hours — such as vacation days, personal days and sick days. However, this would not apply to employees who are on call for 24 hours on the days that they are designated to work. Additionally, as stated before, this will not apply during emergencies, a term left ambiguous within the proposed legislation.
While on the surface, this seems beneficial for employees, who will now have more time to dedicate to their friends, families and self care, there are many components of the bill that can be abused, resulting in deviation from its intended results.
The legislation states that any employee who feels that their employer has required them to work electronically outside of work hours or that they have been wrongfully retaliated against, can file a complaint to “the department” — the specific department is unclear within the text. If the department finds the complaint to be valid — though the legislation does not specify how they will do so –– they have the power to grant an employee monetary relief. Similarly, if an employer has a valid complaint against them, they will be responsible for a civil penalty to be paid to the city.
This begs the question, what keeps employees from filing complaints, even if their termination was not due to electronic disconnection? For example, if an employee in sales, who happens to act on his right to disconnect, is not performing at the same level as his co-workers — who may or may not communicate electronically with their employer after hours — and is fired because of his level of performance, would this be considered wrongful termination? On the one hand, he was using his right to disconnect leading up to the time of his termination. On the other hand, his work performance was below that of his co-workers, which is a reasonable explanation for an employer to fire an employee. The unclear terms within the proposed bill allows for a gray area that could result in costly legal battles for all parties involved.
Similarly, the employer could nullify the validity of an employee’s complaint on the grounds that their communication outside of work hours was due to an emergency. 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.” An employer could utilize this definition to deflect a large portion of claims against them, simply waving their correspondence off as necessary to avoid harm to the company in an unexpected situation.
I firmly believe that workers should have the ability to unplug after hours without repercussions, but this bill, in its current state, has too significant of loopholes to make it effective. With clearer terms and a detailed approach to investigation of complaints, this legislation has the potential to revitalize the separation between work and the home. However, reconstruction and reintroduction of the bill are necessary for any hope for change.
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Email Tyler Crews at [email protected].