With thanks to our colleagues Lois Rodriquez (Baker McKenzie Madrid) and Nadège Dallais (Baker McKenzie Paris):
US companies expanding in Europe for the first time are often surprised to learn of the significant employee protections afforded to European employees (e.g. for example, employment at-will, for the most part, does not translate outside the US). An emerging “right to disconnect” is a new trend US multinationals should watch out for.
Spanish lawmakers recently passed a new act recognizing for the first time ever an employee’s right to digital disconnection. Under this new regulation, all companies with employees in Spain (regardless of headcount) must establish detailed internal policies regulating the right to disconnect after work hours. These policies must apply to all employees, even management and home-based workers.
Spain’s new law also regulates an employer’s right to access content generated by company owned electronics such as phones, laptops, etc. they provide to their employees to monitor compliance with their employment obligations. To do so, companies must roll out internal policies regulating, in detail, the criteria and procedures it will follow when using these digital tools. The degree of detail required includes, for example, stipulating what time of day the employee can use the tools for personal matters, if such use is allowed.
The debate over the right to disconnect is by no means limited to Spain. France took the lead recognizing this right back in 2016. Since then, we note that some employees have brought right to disconnect claims are part of their overtime claims, for example. Additionally, the French labor authorities are pressuring companies to comply with this obligation which may result in employers facing liability on the basis of health and safety issues.
Spain is advancing a trend started in France and we anticipate other countries will join the right to disconnect club in the near term since there is an ongoing concern about the need to find a good work life balance. In the meanwhile, a number companies are implementing ambitious initiatives and policies to boost the well-being of their employees. There is not a one-size-fits-all solution. Companies should establish their own internal regulations ensuring business needs are covered but also respecting their employees’ right to rest and time off and right to privacy.
For assistance developing globally consistent and locally compliant personnel policies, please reach out to your Baker McKenzie employment lawyer.