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Keven Moore: The ‘Right to Disconnect’ from work and how it may change our work environment

Growing up back in my day, when we left work we actually left work behind.

Then came the invention of beepers or pagers and it all went downhill from there. For many, pagers were people’s first mobile devices in the 1980s and they would display the number of a caller, prompting you to go to a nearby payphone and call that person back.

By 1994 there were 61 million beepers in use and as a new corporate safety manager for a retail company in the Midwest, I can distinctly remember landing at the Houston airport late in the evening as my pager seemed to just blow-up notifying me of a pretty bad forklift accident back at our distribution center.

I recognized then and there that the tentacles of business would always forever reach beyond the boundaries of my typical 9-5 job.

Today in a hyper-connected world with our smart-phones, as risk management and safety consultant, it’s not uncommon to receive multiple emails, text messages and phone calls from co-workers, carriers, and clients way into the evening hours, or even while on vacation for that matter.

In fact, while on a beach vacation with my family this past May, I was asked to call into a sales meeting that was taking place with a prospective client in North Carolina. So from the balcony of a 12-story vacation condo with the sound of a beach as white noise in the background, I waited my turn to speak to help my co-workers land this account. The alternative was never an option.

In today’s society, business and all those decision-making activities don’t come to a magical stop once you clock out or walk out of your office. It’s just the way it is.

I recognize that there are two schools of thought as many people prefer and sometimes insist that they disconnect from the office once they leave work. I have had this conversation with co-workers and clients on many occasions.

I’m not here to debate which theory is right or wrong, but I do know that he/she who outworks their competitor, usually always wins and will have food to place on their family table. So it’s just in my DNA and part of my work ethic. Right or wrong it’s just who I am, and I suspect that I will always be checking my phone and working emails late in the evenings even after I retire.

There is a push for giving employees the “Right-To-Disconnect” from work after clocking out and it is starting to gain some traction in the U.S. and in Europe. For the last decade or so there has been a slow and mounting push to separate personal life from business. According to a recent article in Law.com, in response to the trend, software companies, including workplace communications platforms, are now offering “Do Not Disturb” features for users today.

In those work environments where they have adopted this new trend, it’s not uncommon to receive an automatic notification that the recipient was off the clock and would be available during regular hours.

But it can become a very troublesome problem in today’s growing global economy. These new “Rights to Disconnect “ policies will pose special challenges for companies that have locations in different time zones, especially for global companies with workers scattered throughout the world.

Then what about all those people who telecommute to work from home, because of the flexibility that it offers? How do you factor those employees into the equation? In a prior life, I was always notorious for sending work emails at all hours through the night — from my closet where I telecommuted back to my regional office.

However this “Do Not Disturb” movement is a very real crusade. This movement is starting to take effect around the world. In 2017, France passed a law requiring French companies with more than 50 workers to guarantee employees a “right to disconnect” from their emails after office hours.

Quebec is considering similar rules, and Italy has introduced a right for some workers to be “disconnected from technological equipment” according to an article in Risk & Insurance.

In Germany, employees at the automaker Daimler are given software that lets them automatically delete incoming emails while they are on vacation. When an email is sent, the program, called “Mail on Holiday,” issues a reply to the sender that the person is out of the office, the email will be deleted and provides another employee’s contact information for pressing matters. And Volkswagen configures its servers so that emails are not sent outside of regular working hours.

Ironically, in the “city that never sleeps,” the New York City Council is currently considering a proposal that would give employees the right to ignore electronic work communications after hours, and fine employers $250 every time they violate that right. Oddly enough, government entities in New York would be exempt from the legislation. Imagine that, what is good for the goose isn’t always good for the gander in this scenario!

However, in the United States, right-to-disconnect laws may actually conflict with certain provisions of the Fair Labor Standards Act such as the de minimis rule. This rule states that non-exempt employees are not entitled to overtime for doing an insignificant amount of after-hours work over the course of a few seconds or minutes.

Movement continues to grow

So the question remains, “How will this play out here in the U.S., as this movement continues to grow?”
Who is right and who is wrong? Well, that is yet to be determined but you can rest assured that this debate is not over and probably won’t be settled for many years and ultimately may be settled by the U.S. Supreme Court.

In a perfect world, if everybody played by the rules, I think we all would love to disconnect from work once we left work. I know that I would love to be able to, but I am so wired to remain connected and when on vacation I desperately have to check my email so that I don’t have to return to 300+ emails the following Monday.

As long as competition exists in the business world, where your hard work and effort usually always make the difference between landing an account or a new customer, I just don’t see how this new trend can ever come to pass, but anything is possible.

With any grey area, lawsuits are bound to follow. I suspect that this could possibly become a growing revenue stream for many law firms across the world, and when you bring up the word “lawyer”, it somehow is always synonymous with the word “insurance company.”

As a result, I predict that as this movement continues to gain ground and as new laws go on the books, you will eventually see insurance companies fill the void, and will begin adding endorsements to their policies to help business to offset these potential costly “Right To Disconnect” lawsuits that can affect their bottom-line.

I am currently unaware of an insurance carrier that is offering such coverage, but I believe that they will one day very soon. Such coverage probably won’t be offered on a standard P&C policy and instead will be found on an employment practices policy.

The Geico Caveman, Flo from Progressive, and Professor Burke from Farmers Insurance just don’t magically think these new coverages up. Instead with any risk exposure, insurance carriers try to find a solution and that is how new products come on the shelf.

If you can’t wait for the insurance market to catch up with this new exposure there are still options. I am sure that there is an underwriter across the pond at Lloyds of London who will be willing to write you up such a policy, but make sure that you adjust for the time zone differences and call during London business hours or you just may receive a “Do Not Disturb” notice.

Be Safe My Friends

Keven Moore works in risk management services. He has a bachelor’s degree from University of Kentucky, a master’s from Eastern Kentucky University and 25-plus years of experience in the safety and insurance profession. He is also an expert witness. He lives in Lexington with his family and works out of both Lexington and Northern Kentucky. Keven can be reached at kmoore@roeding.com.

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