Will U.S. ban employers from after-hours communication?

After Portugal banned it, HR experts discuss the possibility of such legislation in America

Will U.S. ban employers from after-hours communication?

Banning employers from contacting employees once they’re off the clock is an intriguing concept. In Portugal, it’s recently been made law.

The policy is part of legislation that regulates working from home, giving employees the right to opt out of remote work or request the arrangement if it's compatible with their job. The law also stipulates that employers are responsible for providing workers with the equipment to do their jobs remotely, as well as reimbursing workers for any additional expenses, including increases in electric bills.

France passed a similar law allowing employees to ignore work emails that arrive after working hours in 2017. The Philippines, Italy, Slovakia, Northern Ireland and most recently, Ontario, have also enacted “right to disconnect” regulations to separate the blurred line between work and home.

So, will the United States be next to implement such legislation?

Highly unlikely, says Olivia Martindale, COO of Tulsa, OK-based real estate investment group FixedProperties LLC.

“Whenever you talk about the feasibility of passing a law in the US, you must consider how the law impacts business leaders almost more than public opinion,” Martindale says. “So much of American politics is influenced by the key financial players of the country that it would be a hard stretch to pass such a restrictive law. It would be perceived as a threat to profits by many.”

Read more: Right to disconnect: Portugal bans out of hours emails

While companies are still contending with the challenges of the COVID-19 pandemic, any act that could be seen as another hurdle to overcome would certainly be met with resistance. After government-imposed lockdowns and restrictions, safety concerns from customers, historic supply chain disruption and skyrocketing inflation driving up costs in all industries, the last thing business leaders want to hear right now is that their employees can’t answer the phone after a certain time.

“The simple fact of the matter is that many people should know is that businesses fulfill demand,” says Martin Boonzaayer (pictured), CEO of The Trusted Home Buyer, a Phoenix-based residential redevelopment company. “There is now demand for quality service, which is another way of saying that unless you are the only business that provides a certain service, a client or customer will go somewhere else if they feel unfulfilled, which includes whether they receive service outside regular hours. There will always be a need for employers to contact employees afterhours.”

However, that’s exactly what employees don’t want to hear. After being forced to work from home due to the pandemic, many remote workers feel constantly “on call,” communicating with colleagues and clients outside their traditional hours. Without the commute to the office and back home, employees are extending their workday, working through their lunch break or skipping meals altogether. According to Indeed, 52% of U.S. workers are experiencing burnout, up from 43% in the job aggregator’s pre-pandemic survey.

“Exploiting workers has gone on for far too long and anything that attempts to halt that behavior is a good thing,” says Trav J. Walkowski, partner and chief people officer at Milwaukee-based HR consultancy Employmetrics. “My daily schedule is dictated by meetings, so any random time could be ‘after hours’ depending on the day. I work in a regular corporate-type role, not a 24/7 company, so if the lines are blurry for me, imagine how invisible they'd be in other companies.”

Worker fatigue is one of the main contributors to the Great Resignation, in which a rapidly growing number of Americans have left their jobs. Some 4.2 million workers quit in October, according to the Department of Labor. That follows a record high of 4.4 million quitting in September (3% of the US workforce) and 4.27 million quitting in August. Since the pandemic began, workers have been demanding higher wages, better conditions and more mobility. Essential workers, in particular, have been leaving their positions for greener pastures.

“While we won't see any laws when it comes to work/life balance, that doesn't mean that employees can't negotiate it for themselves,” says Phil Strazzulla, founder of Cambridge, MA-based SelectSoftware Reviews, which helps HR departments purchase software. “In the current job market, job seekers have the upper hand. Worker shortages have struck nearly every industry so, as an employer, you'll have to make some consolations if you want to get the best talent. Agreeing to honor their home life is a small price to pay to get the best people for your company.”

Another issue with the law is the difficulty in enforcing it. There’s the question of what exactly “afterhours” constitutes, especially when having remote teams working in various time zones. What if a company-wide email is sent out while some employees are off duty? Is that a violation? Without clear definitions of what each employee’s work hours are and what communication is allowed, there’s too much ambiguity for such legislation to gain traction in the US.

“The benefit of working remotely is that the same working hours don't always apply,” says Nick Antonopoulos, founder at SEO Design Chicago. “My team has an understanding that you don't need to work an 8-5 shift. Just get the work done, be available to jump on a call or come in for a socially distanced meeting and everyone is happy. With that in mind, we’ll put in a couple of hours in the evening if we ran an errand or took some personal time during the day.”

An anachronism in the breakneck pace of the 21st century, The Upper Ranks, a New Jersey-based digital marketing agency, lets its clients know upfront that there are clear boundaries between on and off the clock.

 “Our clients they know our working hours and are less likely to come up with urgent deadlines at midnight,” says David Farkas, founder of The Upper Ranks. “Instead, we have workflow management software that helps us keep on track during working hours and lets us wrap up just in time. Remote work should not be used as an excuse to extend working hours to 24/7 – our employees’ work-life balance is just as important to the company as it is to them.”

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