The Employee Right to Disconnect

U.S. workers are increasingly finding it difficult to escape from work. Through their smartphones, e-mail, and social media, work tethers them to their workstations well after the work day has ended. Whether at home or in transit, employers are asking or requiring employees to complete assignments, tasks, and projects outside of working hours. This practice has a profound detrimental impact on employee privacy and autonomy, safety and health, productivity and compensation, and rest and leisure.

France and Germany have responded to this emerging workplace issue by taking different legal approaches to providing their employees a right to disconnect from the workplace. Although both the French legislative and German corporate self-regulation models have their advantages, this Paper puts forth a hybrid approach using existing U.S. safety and health law under OSHA to respond to this employee disconnection problem. Initially under the General Duty Clause of OSHA, and then under OSHA permanent standards and variances, this Article provides a uniquely American approach to establishing an employee right to disconnect from work.