Such right is entered into force on January 1st, 2017
According to the law, it belongs to the employers and the unions to negotiate this new right to determine its modalities of application and of control. Such negotiation should take place in companies having at least 50 employees and should provide for the implementation of mechanisms of regulation regarding the use of the new technologies in order to ensure the compliance with rest times and holidays and the familial and personal life of the employees.
Should no agreement be reached with the unions defining the methods of implementation of the right to disconnect, the employer shall unilaterally elaborate, after having consulted the work’s council committee, a policy which shall need to provide for the training actions and sensitization to the use of digital tools.
However, the idea to enable an employee to disconnect completely outside of his working hours is not new in France. In 2004, the French Supreme Court had already judged that an employee could not be dismissed for serious misconduct due to the fact that he had not responded to professional solicitations during his lunch break (Cass. Soc. February 17, 2004 n°01-45889).
Furthermore, several collective bargaining agreements applicable in different sectors of industry had already provided for a right to disconnect (e.g. Syntec).
If the title of this right seems simple, its exact nature questions.
Indeed, no legal definition of what is exactly the right to disconnect is given.
The right is generally described as a right for the employee to not be connected to a digital professional tool (email, smartphone…) during off-duty and vacation time. However, it is not easy to impose the right to disconnect in a professional environment in which the “BYOD” concept has experienced a takeoff without precedent and which therefore has the consequence of dimming a little more the barrier between professional and private life.
However, by sending back to the collective negotiation, the El Khomri law leaves it to unions and employers to guarantee the efficiency of such a right in a manner that matches with the way the company operates. This relative flexibility obliges them however to be imaginative and to find devices adapted to the nature of the functions occupied by the employees to the variety of the means of communication used, considering evidently the needs of each company.
As such, the right to disconnect is not uniform and can materialize itself in several ways:
by a reinforced information of the employees on the use of digital tools (e.g. avoiding to reply to all recipients or to send emails during the week-end or holidays),
by the implementation of training actions or sensitization to new technologies (e.g. reminding the employees that they should not send emails after 9.00 pm or the absence of obligation of the recipient to answer emails outside of regular hours),
more radically, by automatically redirecting the emails of the employees who are out of the office to an appropriate available employee or the interruption of the professional mailbox during evenings and weekends, or even during holidays.
The new law does not provide for any sanction in case of noncompliance, however, companies should take into consideration that employers failing to implement it will likely be sanctioned by judges on the basis of the necessity to preserve the health and safety of the employees at the workplace as well as the necessity to comply with working time regulations.
© 2017 Proskauer Rose LLP.