California is the first state to propose restrictions on an employer’s ability to communicate with employees after work hours.  AB 2751, currently making its way through the California legislature, would give employees the “right to disconnect.”  While this right has been adopted in other countries, such as France, Spain, and Mexico, no state in the U.S. has a specific law addressing this issue.  As discussed below, the proposed law would dramatically change the dynamic on overtime work for both exempt and nonexempt employees in California.  Here are five key issues California employers need to know about the proposed bill:

1. The proposed bill: AB 2751.

AB 2751, if passed in its current form, would require employers to develop a policy that provides employees with the right to disconnect “from communications from the employer during nonworking hours.”  Nonworking hours would need to be established in writing between the employer and employee.  The employee could file a complaint for a pattern of violation, which is defined as three or more documented instances of being contacted outside of work hours.  Violations of the law would be a misdemeanor and of at least $100.  Unionized workers covered by a collective bargaining agreement are not provided protection under this law. 

2. Exceptions under the proposed law.

The proposed bill does permit employers to contact employees outside of working hours for emergencies or for scheduling purposes impacting changes within 24 hours.  “Emergency” is defined as situations that threaten an employee, customer, or the public, a situation that disrupts or shuts down operations, or causes physical or environmental damage. 

3. California state and local laws already protect workers.

California law already provides for numerous protections to employees who are required to work overtime.  Some examples are:

  • Overtime: California law requires employers to pay overtime.  As recognized by the California Supreme Court, this is an unwaivable right by employees.  Labor Code section 510 provides that nonexempt employees must be paid one and one-half their wages for hours worked in excess of eight per day and 40 per week and twice their wages for work in excess of 12 hours a day or eight hours on the seventh day of work.
  • On-call time: Under California law, an employee’s on-call or standby time may require compensation.

4. The proposed bill would apparently apply to exempt employees and does not account for different industries.

The proposed bill does not exclude exempt employees from the law.  Therefore, even exempt employees, such as doctors, lawyers, engineers, officers of a corporation, would all still be covered under the law. 

The proposed bill does not address industries that do not have fixed work hours.  One could only imagine the impact such a bill would have on the trucking industry, catering and event companies, and health care providers.  The bill is silent on industries that do not have established work hours because of the practical considerations for their workplaces and how the law would apply to these industries. 

5. Not only does the bill create a right to disconnect – it also creates a right to refuse to work overtime altogether.

In addition to providing employees the right to disconnect, the bill also apparently provides employees with a legal right to refuse to work overtime past their normal work schedule.  Currently under California law, employers may require employees to work overtime, as long as the employer complies with the overtime requirements and other wage and hour requirements (some mentioned above).  However, under the proposed law, it shifts the decision to the employee on whether they want to work overtime.  The employee would be permitted to leave work at the designated “nonworking hour” as agreed with the employer, and refuse to communicate with the employer at that point.  The bill would limit employers’ ability to have employees work overtime only in emergency situations, as defined by the law.