Hitting back at the after-work email

On the first day of last year, a new law went into effect in France giving workers the legal right to avoid responding to work email or text messages on their days off, or at night. A bill proposed by New York City councilman Rafael Espinal seeks to bring the same idea to the city that never sleeps.

The bill would make it unlawful for private employers in New York — a city known for industries with 24/7 work cultures — to require workers to check and respond to email and text messages during non-work hours, except in the case of an emergency.

“The essence and spirit of this bill is to go after employers who are harassing employees to the point they are being retaliated against,” says Espinal.

But employment lawyers say the bill raises a number of questions. How would workers answer questions from overseas colleagues? Would it apply to salaried workers who aren't due overtime?

Espinal says the bill is not meant to suggest employers can't send email to workers after hours, or even that employees can't choose to respond. Rather, he says, the goal is to ensure that employees who choose not to respond won't be retaliated against.

“It's going to be tricky to define,” says Jonathan Bing, who co-chairs the government relations practice for the law firm Jackson Lewis. “When does an employee feel obligated to respond to that communication? How can one know whether that employee is truly, voluntarily making the decision or feels pressure to make it in order to advance his or her career?”

Others ask whether employers might just try to work around the bill by adopting particularly long “usual work hours”.

Then there is the question of what would constitute an “emergency”.

The proposal does not apply to employers with fewer than 10 workers or to government employees, in part because a separate but similar bill was introduced last year that would cover city employees.

But even with their questions, lawyers say it wouldn't entirely surprise them if a version of the bill passed a council that has approved progressive paid family leave policies and prohibitions on job discrimination for past arrest records.

Bing says Espinal is a respected member of the council, and with New York's progressive mayor Bill de Blasio, “one cannot discount anything”.