Episode 193: California’s ‘Right to Disconnect’ Bill Raises Concerns

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel for Labor and Employment with the California Chamber of Commerce. Hello listeners. Well, every year the California Legislature proposes a handful of employment bills that generate substantial media attention, and this year is clearly no exception. A recently amended bill that the California Chamber of Commerce has now classified as a job killer. Bill AB 2751, sponsored by Assemblymember Haney, purports to provide a quote unquote right to disconnect for workers. However, as we all know, with any law or bill, the devil is in the details. So to discuss concerns and issues for the employer community with AB 2751, we welcome back Ashley Hoffman, Cal Chambers, Employment law policy advocate. Thanks for joining me today, Ashley.

Thanks, Matt. Always good to be here.

So, you know, of course what struck me about the bill getting so much attention is actually how little is inside the bill itself. So let's start with you walking us through what the bill actually says and then we can kind of dissect it and get into the various issues with this bill. How's that sound?

Sounds good. Yeah. And from my understanding, this is, I think, a framework to start some discussions, but as you mentioned, it's pretty short. So it says that an employer must establish a workplace policy providing employees with the right to disconnect. What that means is, is that they have to establish a written agreement between every single employee establishing when their non working hours are. It then says that you can contact someone during their non working hours only for an emergency or for.

Scheduling within the next 24 hours, which implies that outside of those working hours you would not be allowed to contact them.

So when you say employee, this gets, of course, my employment lawyer brain going. Are you talking about exempt and non exempt employees? Because oftentimes we have laws that will differentiate between the two. If it does apply to both types of employees, wouldn't this undermine, you know, long standing rules we have about what makes exempt employees exempt, which is we just work when we work to get a job done and that's why we're kind of paid a set salary.

Yes, that is spot on. So as we read the bill, it does not specify specify. And so we read it to include both. And that is one of our arguments in our letter is that this essentially undermines the very intent of an exempt employee. You know, as an exempt employee, I have the right, you know, absent certain requirements for my job, to work kind of when I want to. You know, there may be some days where I want to work later at night Right. And take a couple hours off to go do something in the afternoon, what have you. And we have the ability to do that. California has laws that are stricter than the federal laws, meaning it is more difficult to classify someone as exempt here in California than it can be in other states. And so as you mentioned, we have some concern then that this actually restrains an exempt employee's flexibility because it forces them to basically write out a set working schedule, which is really, I think, contrary to the concept.

Yeah, it's interesting because the, you know, the California wage orders actually exempt exempt employees from having a schedule that employers need to maintain for us. We only need to keep track of working hours for non exempt employees. And it's for obvious reasons.

Right.

Exempt employees are not paid based on the number of hours that they work. So creating a working hours arrangement seems a little bit unworkable for exempt employees. Right, Ashley?

Yes, exactly.

All right. So in addition to that, of course, the bill would also impact non exempt employees. That also kind of strikes me as strange that there's this bill out there on this basis because there are already substantial protections in place for non exempt employees to discourage off the clock work, especially amid the California Supreme Court's recent direction that employees are just going to be paid for all hours actually worked, even down to the minute. So what kind of protections are already in place that seem to render this bill unnecessary for non exempt workers?

California has some of the strictest overtime laws in the country. So we are one of the only couple of states that actually has an eight hour daily overtime requirement. In addition to the FLSA weekly requirement, we also have reporting time pay. And that has been, you know, interpreted pretty broadly in recent court cases. So an employee can be owed, sorry, reporting time pay, even if they just have to call into work to see if they need to come in or you know, maybe waiting in their car or something like that. There's also certain restrictions as far as when you owe reporting time pay if you restrict an employee's geographic location, you know, saying maybe they need to be within, you know, 20 minutes of the office at a certain time, something like that. There are certain on call pay for certain, certain positions. So California has pretty robust laws. And you know, just given my experience and my former practice, because of that, employers have really strict policies limiting overtime work and other work. So limiting, you know, managers or supervisors who may try and make employees work outside of their normal scheduled hours or outside of that eight hours a day.

Yeah. And that overtime thing in particular seems interesting. Right. Because there's A concern here now where you have to set these working hours in advance, that we're just not going to see employees earning overtime even in situations where they may want it.

Right, right. And so, of course, as you mentioned, if someone works overtime, you absolutely have to pay it. But I think the concern here is if you, you know, aren't also allowed to ever contact them to ask them to work, or if once these hours are set, they're set in stone, then it becomes much more difficult to ask your employees, hey, does someone want to pick up an extra shift on Thursday? You know, does someone want to work on this project? It might be a couple more hours. And some people want to because it means that they're earning overtime, they're earning one and a half times their normal pay or more. And so, unfortunately, I think we're actually going to see potentially less opportunity for wages for workers.

So really, Ashley, to me, it seems like in an area where both exempt and non exempt workers are heavily regulated in California, more so than anywhere else in the country, the bill feels more like a solution in search of some kind of problem that doesn't exist. But, you know, beyond that, the issues don't end there because you did mention there's an exception here where we can communicate under the bill outside working hours, and that's this vague reference to an exception where the employer would be able to speak with an employee during an emergency or for some scheduling issues. Ashley, can you kind of describe what's going on with the bill in terms of the exception?

Yeah. So as you mentioned, there are two exceptions. One is an emergency, which is really just defined as like something that would disrupt operations. And it's, it's not clear what that would entail or not. And as an employer, you know, I would act on the conservative side and probably on the side of not reaching out, even if it would technically be. Be allowed to do so, or scheduling, but only if scheduling is coming up in the next 24 hours, which could be tricky. Right. If you need to reach out to someone on a Friday about something that's coming up on a Monday. Right. Or if you want to reach out about scheduling in, in, you know, 36 hours. Right. Which is still, still pre. Close, ironically. Also, the worker would actually probably have to read the email or take the call to actually know if it qualifies, which, which undermines the intent of the bill. But then also, you know, there, there's just some other issues with this. Right. Employer is not really defined, so it's not clear who this applies to. Does this mean that you and I, just as co workers, couldn't communicate, or is this only going to apply to your supervisor, for example?

You know, it seems really that there's a lot of reason for this bill's designation as a job killer. There's too much, you know, going on in here for areas that, again, are already heavily regulated. Is there anything else that, you know, listeners should know about the bill at this stage in the game and what's going on here and things that they may have read in the media that need clearing up?

Yeah, I think, as I mentioned, you know, my understanding is that this is a place to start to have a discussion. But I think really from our point of view is, you know, to the extent that this is trying to get at scenarios where people have been, even exempt employees, right. Have been told, hey, your General hours remain 9 to 5, 9 to 6. But then sometimes, you know, their supervisor maybe is contacting outside of that. Does that really warrant litigation? Right. Should we be opening employers up to litigation every time they feel like their boss is reaching out to them at a certain hour or, you know, in my case, right. I'm someone who, if there's a work emergency that's going to be happening tomorrow, I'd rather get a heads up about it. You know, I may want to take a couple extra hours to work on it. Right. And then my colleague may not want to see an email on it till later. They might not want to deal with it till tomorrow. So then the day. I think every employee works differently. And I think our laws are already very, very protective of those differences and protective of workers as far as working outside of normal hours. And so we feel like this bill is, you know, unnecessary and then really it's just going to result in being overly punitive. So, you know, it hasn't been set technically for hearing. Probably would expect it if it does get set for hearing in the first committee assembly labor, that that would happen likely on April 17th.

Okay, Ashley. Well, short and punchy episode today, but given, you know, the national media attention on this one, we thought it was really important to get you on here. So thank you so much for shedding light on what this bill actually is at this point.

Yeah. Thank you so much.

And thank you listeners for joining this discussion on the workplace. Please comment, share and subscribe to calchamber's podcast by visiting calchamber. Com.