07/29/2024 | News release | Distributed by Public on 07/29/2024 12:19
Cell phone communications, emails, and texts have been around for decades. According to JB Knowledge's 2020 Construction Technology Report, 93 percent of construction industry workers use smartphones for work purposes. Notwithstanding the incredible benefits of immediate contact and transfer of information to personal and business communication, these capabilities inevitably affect many construction workers personally in how well they can separate work life from personal life and, thus, their overall quality of life.
The specific effect depends on many factors, including the nature of the construction work, the nature and frequency of the communications, the degree of interruption in their personal life, and the consequences, actual or perceived, in avoiding contact during off-work hours. Additionally, there are some occupations, such as construction supervisors, forepersons, and safety managers, where such after-hour work might be expected, and desired, by both employer and employee. To be sure, unforeseen project-related events requiring the attention of skilled personnel in real time are an escapable part of the construction industry. On average, construction professionals are typically putting in more than 10 hours a day, with harsh weather conditions and high-pressure deadlines. Accordingly, communication often at off-schedule hours is critical to the industry yet threatens to overstress a workforce already spread thin.
Expressed concerns over workers led to discussion that, in some parts of the world, has led to consensus. For example, in France, the sentiment became codified as law. Others were not quick to follow, at least to the same degree. In certain other European countries, Canada, and Mexico, similar protections have gotten traction in more recent years.
California is the first U.S. state to see a bill proposed. California Assembly Bill 2751 was proposed this past legislative session and much debated. The bill was met with significant opposition, including arguments that the one-size-fits-all approach made the bill overly broad and limited employers' autonomy to establish effective workplace cultures. For now, the bill has been shelved.
Whether a law is necessary to address concerns is questionable. Many states would hesitate to dictate how and when an employer can communicate with its employees. One can imagine scenarios where a need for employee-employer communication is crucial. For example, an unexpected safety or operational issue in the workplace requiring attention at, or avoidance of, that location.
Employees without contractual obligations (at-will) simply have the right to leave. If an employer imposes oppressive obligations inconsistent with expectations, then the free market of labor should correct. Moreover, employers must comply with their obligations to pay compensable time, so time contacting and communicating with employees during off-work hours could be on-the-clock and require payment of wages or overtime. The necessity of off-schedule contact with construction employees regarding unpredictable project developments render this a concern for employment law compliance in the industry.
Crafting laws to account for all concerns is and will remain challenging and difficult, at best. Here are some examples:
Fashioning a right to disconnect as law inherently requires flexibility and the incorporation of exceptions and nuances, at least in certain sectors. That is where the debate is centered. Balancing employers' need for communication and workers' wellbeing will be particularly challenging in the construction context.
Although there is no law yet giving a right to disconnect on the books, U.S. construction employers should ensure their policies on device use, particularly in remote work arrangements, are clear, up to date, and fully compliant with Fair Labor Standards Act and state wage requirements. Jackson Lewis attorneys will continue to monitor these developing laws and can provide assistance on any related inquiries.