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The electronic leash: Remote work and the right to swit...

Defend Truth

Opinionista

Slipping the electronic leash: Remote work and the right to switch off after hours

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

Remote working is the future or is a permanent feature of workplaces even beyond Covid-19. It is important that policies that are developed to regulate the new remote working arrangements also deal with after-hours communications between bosses and employees.

The former French education minister Benoît Hamon once remarked that “employees physically leave the office, but they do not leave their work. They remain attached by a kind of electronic leash, like a dog.”

Hamon’s observation prompts the following questions: since remote working became commonplace, how prevalent is it that you receive communications 24/7 from your employer? Do South African workers have the right to disconnect?

The following has become the norm since the advent of the Covid-19 pandemic and working from home: unending working days with employees (figuratively) “bringing work home”, responding to emails and returning after-hours calls from employers, and burning the midnight oil to write and submit a report that was suddenly requested by the employer. Reacting to off-the-clock communications from employers or bosses may be traumatic and blurs the lines of acceptable communication after the workday has ended, and sometimes straddles the thick line between workplace bullying and emergency work.  

A 2020 study reported in The Conversation found that off-the-clock or out-of-hours work communication has the potential to induce high levels of stress. In particular, it was reported that “employees who had supervisors expecting them to respond to work messages after work, compared with groups who did not, report higher levels of psychological distress (70.4% compared with 45.2%) and emotional exhaustion (63.5% compared with 35.2%). They also reported physical health symptoms such as headaches and back pain (22.1% compared with 11.5%).”

France passed a law in 2017 that gives employees in a workplace with 50 or more staff the right to disconnect, and to not be bothered with off-the-clock or after-working-hours communications from the employer. Italy has introduced similar legislation giving employees the right to disconnect. In South Africa, the matter is yet to be authoritatively addressed by the Department of Labour and the law in general. 

The Basic Conditions of Employment Act provides for ordinary hours of work that must be observed. In terms of the act, you must not work more than 45 hours in any week; nine hours a day if you work five days or fewer a week; and eight hours a day if you work more than five days a week. The act applies to all workers and employers except members of the South African National Defence Force, National Intelligence Agency, South African Secret Service and unpaid volunteers working for charities.

There is a general appreciation around the world that there are legal implications for calling and/or emailing employees after normal working hours. Employees are also mounting a push-back of some sort concerning off-the-clock communication. In some cases the employers themselves appreciate the negative impact of off-the-clock communication can have on employee work-life balance.

For example, in 2013 the German labour ministry banned its managers from responding to emails after hours, unless in an emergency. The secretary of the Philippines’ department of labour and employment went a step further in 2017 by stating that “employees who ignore work-related emails or texts after working hours should not be subjected to disciplinary action”.  

Portugal is the latest country to introduce a law that bans off-the-clock communication with employees as a serious offence. It is now illegal in that country for an employer or manager with 10 or more employees to contact workers outside of their regular business hours by phone, message or email. The law is a rights-based approach in that it calls on employers to respect the privacy of the workers, their period of rest and family time.

“The pandemic has accelerated the need to regulate what needs to be regulated,” said Ana Mendes Godinho, Portugal’s minister of labour and social security. The law has far-reaching consequences because employers now have the obligation “to help pay for expenses incurred by remote working, such as higher electricity and internet bills”. Further, employers in Portugal are now prohibited from monitoring employee activity while they work from home. The law in Portugal does not, however, give employees the right to disconnect. It mainly provides a framework to govern off-the-clock communication. 

Comparatively, this is an interesting piece of legislation. Employees in South Africa who unsuspectingly carry the burden of electricity and internet expenses working from home and responding to after-the-clock communications will benefit from such a law or policy. A similar policy implemented in this country may mean that an employer can never say that “you did not respond to my emails, but I have noticed that during the same time you were busy on Twitter”.

The takeaway from laws introduced in countries like Portugal and others is that remote working may not be as beneficial to many workers as it is made out to be, and has the potential to disrupt work-life balance and family life if not properly regulated.

According to Lusanda Raphulu and Sian Gaffney at Bowmans South Africa, in their recent commentary on the laws around working from home: “A good place to start in bringing the benefits of remote working to the fore while managing the challenges that come with them, is for employers to look to making any required changes to the employment contracts, as well as developing a remote working policy to regulate new working arrangements.”

Remote working is the future or is a permanent feature of workplaces even beyond Covid-19. It is thus important that policies that are developed to regulate the new remote working arrangements also deal with after-hours communications and related procedures. Otherwise, employers may attract legal liabilities associated with off-the-clock communications to employees.

Further, employers must consider compensable overtime work for the remote work environment.

One of the most significant cases involving off-the-clock communication is Allen v City of Chicago, 2017 US. In this case, a member of the Chicago Police Department’s Bureau of Organised Crime brought a suit against the bureau alleging that the employer failed to compensate its officers for work done on their BlackBerry devices outside of working hours. The plaintiffs lost the case on a technicality because both the district court and the 7th Circuit ruled that the plaintiffs failed to substantiate their claim that the bureau knew that they performed overtime-compensable work without due compensation.

In that context and for this opinion, this case will stand for the proposition that compensable work done off the clock while working remotely must be treated in the same way as overtime at the workplace is treated.

One hopes that the South African Department of Employment and Labour is taking heed of the best lessons in how to address all the issues around remote work within the context of the Basic Conditions of Employment Act and other labour laws. DM

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