The “Labour Law” of August 8th, 2016 has strengthened the right to disconnect for all employees in France. Although the law puts the most significant constraints on companies that have at least 50 employees, the object of this paper is to determine the precise consequences on small and medium companies (with less than 50 employees.)
The Purpose of a Right to Disconnect
When reinforcing the right to disconnect from professional remote communication tools for all employees, the Labour law aims to ensure the application of basic principles of the French Labour code. In fact, the purpose of such right is to ensure:
– compliance with employees’ rest and vacation times
– employees’ work-life balance
– more generally, the protection of the employees’ health
Recommendations for Companies with Less Than 50 Employees
Some CBAs will clearly provide for the means to exercise the right to disconnect. In this case, companies applying such CBAs must implement such means.
For companies whose applicable CBA does not provide for the rules of exercise of this right, the employer must determine those applicable in the company and communicate this information to employees by any appropriate means. Because this right applies to all employees whatever their working time arrangement, a company memo would be appropriate.
Practicalities of the Right to Disconnect
In practice, the right to disconnect means not connecting to remote communication tools outside of working hours for employees whose working time is calculated in hours, or during mandatory minimum daily and weekly rest times for employees whose working time is calculated in days.
This right also applies to all employees during their leave times (any authorized absences, vacations, rest days, etc.) In addition, it is important that executive and line managers are aware of the obligation to comply with their team members’ and other employees’ right to disconnect.
Compliance with Rest Times
Here is a reminder of some basic rules in terms of rest times, which should be kept in mind when dealing with employees’ right to disconnect.
Depending on the individual arrangement provided by the employment contract, working time is either calculated in hours or in days. The Labour code provides that employees, whatever their working time arrangement, benefit from a mandatory daily rest of a minimum of 11 consecutive hours, and a weekly rest of a minimum of 35 consecutive hours (24 hours + 11 hours.) This being said, please be aware that the applicable CBA may provide differently.
Furthermore, employees benefiting from an annual global working time arrangement in days should not work more days than the number of days provided in their arrangement. If an employee should work one more day, he/she should take one additional rest day in order to not exceed the applicable cap in days. For employees working in hours, they must comply with the number of working hours provided by their employment contract and may work beyond the contractual time in agreement with the employer. In such situations, there are mandatory maxima which apply in terms of overtime as well as specific compensation.
For employees working from home, the same rules apply as for employees working on the company premises. In addition, their employment contract or any amendment to their employment contract providing for telecommuting should notably specify the timebands during which the employee can be contacted by phone in order to compy to protection of private life.
Executive managers, who fulfill the criteria to be defined as such with regards to working time legislation, are not subject to working and rest time regulations, but to regulations on vacation time only.
The company memo about the right to disconnect of companies with less than 50 employees should therefore take into account the characteristics of the applicable CBA and the different working time arrangements of their employees.