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Since January 1st 2017, French employers are required to guarantee their employees a »right to disconnect« from technology during off-duty hours and holidays.

The goal of this new law is to tackle the overuse of digital devices which is deemed detrimental to the employee«s health and suspected of causing burnout, sleeplessness or relationship problems.

The measure is intended to address the so-called »always-on« work culture that has led to a surge in, usually unpaid, overtime – while also giving employees flexibility to work outside of the office.

The idea of allowing an employee to disconnect completely outside of his working hours is not entirely new in France. In 2004, the French Supreme Court found that an employee could not be terminated for failing to respond to professional emails during his lunch break. Furthermore, several collective bargaining agreements applicable in various industry sectors have already provided for a right to disconnect.

The new law extends the right to disconnect to employees whose working time is computed by days (usually 218 days a year) rather than by hours; and to all employees in companies with more than 50 employees.

The scope of this right, however, is not defined by the law and must be determined at the level of each concerned organization.

The employer and the unions have an obligation to negotiate what this new right should encompass and how its application should be controlled. The new policy should include mechanisms of regulation regarding the use of the new technologies in order to ensure compliance with rest times and holidays and the protection of familial and personal life.

Should no such agreement be reached between the employer and the unions, the employer shall unilaterally publish , after consulting the work council and the health and safety committee, a policy that guarantees the effective application of the right to disconnect.

This right is not easy to impose in a professional environment in which the line between professional and private life is increasingly blurred due to the success of concepts such as bring your own device »BYOD«. Remaining connected is particularly important for employees who work remotely or with colleagues in other time zones.

By calling upon collective negotiation, the new law leaves it to unions and employers to adapt the content of such a right in a manner that matches with the way the particular company operates. This relative flexibility obliges them to be imaginative and to find practical solutions to enable an effective disconnection adapted to the functions assumed by the employees.

The right to disconnect can be materialized in several ways, such as:

• Blocking the professional mailbox during evenings, weekends and holidays;
• Prohibiting the sending of professional emails during these times except when justified by an emergency;
• Labelling of non-urgent communications made outside of working hours with »no urgent reply required«;
• Defining time slots during which no response is expected;
• More drastically, automatically destroying emails that are sent to employees when they are on holidays;
• Implementing training sessions so the employees understand the limits that should apply to the use of their devices.

The new law does not provide any sanction in case of noncompliance.

However, companies would be well advised to implement measures that respect the right to disconnect. Failing to comply with the new law will likely be sanctioned by courts on the basis of needing to preserve the health and safety of the workplace. Furthermore, noncompliance would certainly play against the employer in a wage-and hour-case.

Article by

Weil & Associés

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