Firm news 13 January 2017

The right to disconnect

Digital tools are used almost universally in companies these days, regardless of the sector of activity and are now part of the employer welcome kit (laptop / Smartphone / digital tablet) or are provided by employees themselves by personal choice or corporate policy (“Bring your own device”).

With these tools, working methods have evolved and continue to do so at a rapid pace. Employees are more and more “connected” outside the company and working time is now intermittent and no longer continuous. Thus, 37% of employees report using professional digital tools outside their working hours, of which 44% are executives, according to a study published by Eléas – Digital Practices (France) in October 24, 2016 (“Eléas study”).

This new reality has the effect of blurring the boundaries between personal and professional life. Nevertheless, 40% of employees appreciate the flexibility allowed by digital technology according to the above mentioned study (Eléas study).

The “Loi Travail” dated August 8, 2016 and adapted into the French labour Code addressed this issue specifically with the ostensible purpose of setting up protections for employees’ health and to avoid abuses by establishing a “right to disconnect”.

What is new in 2017?

Since January 1st, 2017, all companies employing at least 50 employees and having a union delegate (in French “délégué syndical”), as part of their Mandatory Annual Negotiation (“MAN”) on professional equality between women and men and quality of life at work must discuss and negotiate rules governing the exercise of the right to disconnect.

What are the employer’s obligations ?

The French Labour Code introduces the principle of the “right to disconnect” but does not define it. This allows each company to create in conjunction, with its union delegates or staff representatives, the most appropriate practical ways and means taking into consideration :
– the constraints related to their business (work with foreign countries with time difference / night work, work on Sundays);
– the profiles of their employees (nomad (i.e. consultants / salespersons ) / sedentary).

Concretely, pursuant to Article L.2242-8 of the French Labour Code, companies employing at least 50 employees and also having a union delegate (in French “délégué syndical”) must, in the framework of their negotiation of their companywide agreement related to professional equality between women and men and the quality of life at work, consider “ways” in which they can regulate the use of digital tools and the “means” to regulate their use, keeping in mind that the purpose of this approach is to comply with statutory periods of rest and holidays. In fact, this issue is linked to obligations already undertaken by every employer under general principles of labor law, namely to preserve and safeguard the health of its employees.

In the absence of a companywide agreement for those companies meeting the criteria, the employer must draw up a “Charter” for the proper use of digital tools providing the modalities of the “right to disconnect” and the implementation of training and awareness-raising actions for everyone (employees / managers / direction), “for the reasonable use of digital tools” and submit it to the opinion of the members of the Works council or, in the absence of a Works council, of the staff delegates (in French “délégués du personnel”). This Charter should, in our view, follow the same procedure as the company internal rules in order to ensure that its content be actually enforceable against employees, provided that the employer sets out in it concrete employee obligations.

If there is no union delegate then the company is not required to negotiate an agreement or draft a Charter and the “right to disconnect” does not have to be addressed or framed at this stage.

However, it should be emphasized that this right to disconnect has already been in force since August 10th, 2016 (date of the entry into force of the Loi Travail) in all companies with employees under individual conventions setting up a yearly working time package in days (i.e. where working time is counted in days).

Indeed, Articles L. 3121-64 II and L. 3121-65 of the French Labour Code require that these conventions provide the modalities of the right to disconnect, which may be set either by collective agreement or, in the absence of it, unilaterally by the employer, in accordance with the charter referred to above in companies employing at least 50 employees.

Moreover, it should be pointed out that this “right to disconnect” is not a 2017 novelty. This concept emerged from 2014 and the legislative approach goes in the direction of a concerted search for a way to reconcile personal and professional life, (i) taking over the requirements commanded by the French Supreme Court since 2011 to ensure that workers with a yearly working time package in days benefit from the mandatory limits of maximum working hours and minimum resting periods and (ii) taking into account the collective negotiations which took place within several sector of activities and which led the Syntec branch (i.e. Technical Studies Firms, Consultant Engineers Firms and Consultancy Firms) in the first instance to establish in a collective agreement the “obligation to disconnect” since an amendment dated April 1st, 2014.

It should also be noted that the law does not provide specific sanctions in case of failure to implement the modalities of the right to disconnect or “means” to regulate the use of digital tools, or even training and awareness-raising activities.

However, failing that, the risk incurred by employers remains the same as the one which existed before January 1st 2017, namely judicial proceedings and sentences for salary back payment for overtime, damages related to health condition (depression / burnout / psychological harassment) and/or to non-compliance with resting periods, the flat-rate allowance for illegal work (6 months’ salary).

Failure to comply with mandatory resting periods is also a criminal offense (punishable by a fine of 1,500 € per offense when committed by an individual and/or 7,500 € per offense when committed by a legal entity), as well as concealed work (punishable by a term of 3 year’s imprisonment and by a fine of 45,000 € per offense when committed by an individual and/or 225,000 € per offense when committed by a legal entity).

Finally, failing to evoke the right to disconnect in the framework of the MAN, or failing to carry out such MAN, makes employers liable to criminal prosecution for the criminal offense of obstructing the exercise of union rights. It is punishable by a term of 1 year’s imprisonment and a fine of 3,750 €).
Examples of measures taken by companies or recommended by collective bargaining agreements (“CBA”) :

• Commitments in principle – Rules of proper practice

– Avoid to send emails outside working hours (Banque Populaire’s CBA);
– Do not give in to immediateness of the messaging service – Inform / remind employees that they are not compelled to respond to emails received in the evening and / or during their periods of daily or weekly rest (Banque Populaire’s CBA + Import-Export’s CBA);
– Consider the most appropriate time to send an email in order not to create a sense of urgency and to use the deferred sending functions (Banque Populaire’s CBA + Import- Export’s CBA);
– Promote direct exchanges (Banque Populaire’s CBA);
– Copy emails only to the persons directly concerned (Banque Populaire’s CBA);
– Alert hierarchy in case of recurring overflows (Banque Populaire’s CBA);
– Awareness-raising, accompaniment and training actions for employees and managers concerned with the use of digital tools (Banque Populaire’s CBA);
– MOOC (Massive free online courses) to train managers at the risks of permanent connection (Loi Travail draft);
– Integrate into the usual trainings (project management / lead a team / better communicate etc) a part relating to the proper use of digital tools.

• Concrete / effective / radical measures

– Setting up of emails-free days (Loi travail draft);
– Automatic disconnection to the server’s access after 13h connection in a daytime (Métreurs-Vérificateurs’ CBA);
– Put the server on standby after a determined hour and / or during the weekend;
– Retention of emails received in the evening (after a certain hour (e.g. 8pm)) and release in the following morning;
– Prohibition to send emails between 8pm and 7am except exceptional situation (Métreurs-Vérificateurs’ CBA);
– Set up of automatic message (pop-up) for late users (e.g. “It is more than 8pm, is it necessary to send this email now? Can’t it wait until tomorrow morning?”);
– Inserting an automatic notice integrated in the emails’ signature pad specifying to the one who receives it that he/she has no obligation to answer during his resting periods and/or holidays (Banque Populaire’s CBA);
– Weekly random check of resting periods and work days amplitude (Métreurs-Vérificateurs’ CBA);
– Measure of the number of emails sent outside working hours to determine whether it is a one-off phenomenon (cyclical, e.g: end of accounting year) or structural concerning a whole service or a few individuals ;

Limits of this right?

The French Labour Code, from now on, establishes:

– a right for employees (and not an obligation) to disconnect, which means that the employer cannot, in principle, reproach him for being disconnected;

– an obligation for companies to negotiate agreements, to set up practical modalities of disconnection and raise awareness of its managers who are its representative in the field.

What about third parties working with French companies, including customers and suppliers and others in and outside of France to whom the law does not apply and/or are accustomed to communication with any company after hours, especially if they are foreign companies where such right has no equivalent?

How will French companies deal with its customers or suppliers who may not be in France and who need to connect after working hours and expect a response?

From a business point of view, it is unthinkable to delay a conference call or an email because of the “right to disconnect”.

It is likely that companies will have to be given some flexibility as to the modalities of the right to disconnect (which is now the case in the law, which does not impose any specific measures and leaves room for negotiation) and time to adapt their operating methods and their communication plan towards others who are still ‘connected’ and expect to be.

Also, although not required by EU law and/or regulations, based on the French example, it cannot be excluded that other EU countries may walk in the path of France in looking to implement similar laws, and indeed outside the statutory framework employees and collective bodies could also negotiate for substantively similar provisions so that the right to disconnect becomes common either by industry practice or through human resource management best practices and contractual norms. In any event it is unlikely that this issue will be restricted to France in the future.


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