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This week, approximately one million workers in France in the digital and consultancy sector won a legally-binding agreement protecting them from having to respond to email outside of working hours – that is before 9 a.m. and after 6 p.m. There has been much talk since about the effect that limiting email outside of working hours has on employees’ wellbeing and work life balance, but little has been said about the possible legal benefits to these sorts of controls.
Increasingly, we are seeing these after-work email issues arising in our practice in two ways. First our employer clients are often surprised to receive claims from their employees for unpaid overtime as a result of the employee having spent time after hours reviewing and responding to email. The fact is that, if the employee is engaging in work activities outside of the standard work day hours, that employee may very well be accumulating an entitlement to be paid for overtime.
The challenge with these types of claims is that they often come up, not during the employment relationship itself, but after it has soured and the employee no longer has any reason to avoid trying to “rock the boat”. These claims can be relatively easy to bring to the Ministry of Labour and the limitation periods can be quite lengthy. In addition, unlike other claims that employees make for unpaid overtime where they lead verbal evidence to try and persuade the decision-maker that they have worked outside of normal business hours, here employees are easily able to prove their overtime work by introducing the emails themselves as evidence. These claims can be very difficult for employers to refute and can come as a rude awakening when the claim is for many hours worked on a multitude of days, going back months or years.
The second way in which we have seen after-hours email raised is in our investigation practice. A number of our workplace harassment investigations have included an allegation that the alleged harasser sends emails to the complainant(s) at all hours of the evening and weekend and expects immediate responses. Depending upon the specific circumstances and the language contained in the applicable policies, such conduct on the part of an over-zealous manager can indeed be one component of a pattern of workplace harassment.
So, despite the apparent appeal to managers and business owner of continuing to access the assistance of their work-force outside of normal business hours, it’s clear that this can have potential negative legal consequences. Inasmuch as it is often tempting to try and get an answer to that pressing business question right NOW, there is benefit to asking whether this is indeed something that can wait until tomorrow. In doing so, not only might employers find that they avoid potential legal troubles, they might also reap the benefits or a happier and more productive workforce.