California’s Exploration of the “Right to Disconnect” – What Does it Mean?

Kimberly C. Carter, Susan Gross Sholinsky, Steven M. Swirsky, Members of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, and Janae Barrett, Law Clerk - Admission Pending, co-authored an article in the Employee Relations Law Journal, titled “California’s Exploration of the ‘Right to Disconnect’ – What Does it Mean?”

Following is an excerpt (see below to download the full version in PDF format):

On April 1, 2024, California Assemblymember Matt Haney (D-San Francisco) introduced Assembly Bill 2751 (A.B. 2751), which would have entitled workers to a “right” to ignore employer communications, such as email, texts, or calls, during agreed-upon nonworking hours. The bill – the first major legislation of its kind in the United States – sought to add a new provision to the state’s Labor Code, mandating that California employers establish workplace policies to provide employees the right to disconnect from work communications. Among the requirements would have been the establishment of written agreements between employers and employees designating each employee’s “nonworking hours.” A.B. 2751 would have applied to all California employers, both public and private.

It is foreseeable that if a California bill like A.B. 2751 is ever enacted, some other states would likely consider granting similar rights to employees. Although A.B. 2751 died in committee on May 16, 2024, it remains significant, not just because its tenets are likely to be reintroduced in California, but also because it sparked a lively debate about concept of a right to disconnect, which has taken hold around the world.

As drafted, A.B. 2751 carved out two safeguards for the benefit of employers. First, employers would have been permitted to contact employees during nonworking hours for emergencies. The legislation defined an “emergency” as “an unforeseen situation that threatens an employee, customer, or the public; disrupts or shuts down operations; or causes physical or environmental damage.” Second, employers would still have been able to contact employees for “changes to a schedule within 24 hours.” The law would not have applied to employment relationships covered by collective bargaining agreements. However, unions would have been expected to seek similar provisions during future contract renegotiations with employers.

Further, the bill contained enforcement provisions that would have enabled employees to file complaints with the California Labor Commissioner, adding the specter of new civil penalties and additional litigation risks to an already complex state regulatory environment.