Should it be unlawful to make employees check work email after hours? Some in NYC Council think so.

Woo boy! I’m sure that none of you have any strong opinions about this one.

None whatsoever. 😁

A few weeks ago, New York City Council Members Rafael L. Espinal, Jr. and Alicka Ampry-Samuel co-sponsored a bill that would make it unlawful for private employers in the city of New York to require employees to check and respond to email, text messages, and other electronic communications during non-work hours.

What does this bill say exactly?

§ 20-1402 Disconnecting from work. a. 1. It shall be unlawful for any employer to require an employee to access work-related electronic communications outside of such employee’s usual work hours, not including overtime, except in cases of emergency.

2. All employers shall be required to adopt a written policy regarding the use by employees of electronic devices to send or receive emails, text messages, or any other digital, work-related communication, during non-work hours….

Violators are subject to monetary fines for each time a company requires an employee to access work-related electronic communications outside of the standard work hours. Penalties for retaliation (yep, there’s an anti-retaliation provision) can be up to $2,500, plus lost wages.

So, what the heck, amirite?

With the caveat that I’m no expert on NYC labor law, I see a couple of glaring issues here:

First, the bill does not distinguish between exempt and non-exempt employees, except by noting that an employer can require an employee to access work-related electronic communications while working overtime. That implies that a company can only require non-exempt employees to check work emails off the clock, and pay them for it.

I get paying non-exempt employees who spend any more than a de minimis time checking emails off the clock. The Fair Labor Standards Act requires that. However, the FLSA contemplates that exempt employees get a salary (well, most of ’em anyway) and get paid that salary regardless of how few or many hours they work in a week. That could include checking and responding to a few emails off the clock. This bill is at odds with that generally-accepted wage-and-hour precept.

Second, we’re adults. Look, I don’t know what “cases of emergency” would justify requiring an employee to access work-related electronic communications off the clock. Notwithstanding, sometimes work needs to get done after business hours. Not all the time, but sometimes. When that happens, an employee may need to check his or her email. And, if the employee doesn’t like the occasional inconvenience of doing so, if that employee is at-will (most of us are), that employee can seek out other employment with another employer. God bless America.

A wake-up call, nonetheless?

Still, a bill like this is not formed from whole cloth. More likely, this legislation is a reaction to what many may perceive as too many employers not appreciating that many employees crave more work-life balance.

So, while this bill probably won’t become law, think of it as a wake-up call.

Maybe your business needs to hit the pause button, take stock, and decide whether the company places too much emphasis on work and not enough on life. If so, consider some re-alignment. Otherwise, you may come to appreciate the meaning of at-will employment, through employee attrition.

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