The first time I heard about the Right to Disconnect in France was three months ago when friends were forced to work fully remotely due to Covid19. I had been working this way for years and loved it, but they were finding it hard to disconnect when work and life happened in the same place. In France, there was a provision in Code du travail (French Labour Code) that aimed to help them.
I had just returned to my home country after living a digital nomad lifestyle for years. In that time, I hadn't kept abreast with the development of labour law in France. I knew that significant legislation had been introduced back in 2016, aiming to put French labour law in the 21st century by adding more flexibility, but I didn't know much more.
I had run away from France years before because I didn't want to follow the traditional French labour path. Working remotely for more progressive companies provided far better access to exciting work, growth opportunities within international organisations, and the ability to live in amazing places around the world.
I came back to France less than a month before the Covid19 pandemic hit us hard. When the Government decreed in March 2020 that everyone who could work from home should, nothing changed for me. Yet for some of my friends here, everything changed overnight and what had been difficult before, became nearly impossible - managing the separation between personal and professional life.
I had gotten used to that blur and had accepted it as part of the benefit of working from anywhere. It meant that sometimes late at night as I was watching Netflix, I might get a ping on Slack from an overseas colleague and feel obliged to respond. It was a small price to pay when I had spent the day working from a beach in Thailand or a co-working space overlooking a rice paddy field in Bali, or when the Twelve Apostles Mountain in Cape Town was my backyard for a few months.
"Do you know that there is a law that is meant to help us disconnect from work," a friend told me one night as we sipped red wine over Facetime. As I read up on the Right to Disconnect the next morning, I wondered if this could be a viable antidote to the growing problem of burnout and if, in this case, France could be leading the way for other governments to protect the increasing number of remote workers.
The Right to Disconnect in France was a provision introduced in 2016 as part of a much bigger update on French employment law that aimed to bring much more flexibility, and making it more fit for purpose in an increasingly digital world. The entire update was introduced by Labour Minister Myriam El Khomri and became known as the El Khomri law. The entire package of provisions received criticism from labour unions because of some of the elements in it, such as the one that made it easier for companies to lay off workers, reducing their severance payments in case they were made redundant, or the reduction in overtime payments, something which had been put in place twenty years prior when the workweek was set to 35 hours.
However, within that set of new law provisions came tangible benefits to employees such as the ability to transfer untaken days off between employers, additional support for young people without training or qualifications, as well as the Right to Disconnect.
Less a law and more a permission, it gave bargaining power to French employees to negotiate the amount of time dedicated to sending and receiving work-related texts, phone calls, and emails outside regular working hours.
In companies with 50+ employees, the Right to Disconnect became a part of the NAO (mandatory annual negotiation) on workload and the quality of life at work. In companies with less than 50 employees, the recommendation was to draw up a charter which would define the procedures for exercising the Right to Disconnect. Provisions in the contract could state when an employee is expected to answer calls, emails or text (and when not), and what the expected responsiveness was.
However, these were only recommendations; there was no obligation to reach an agreement and therefore, no penalty for not having it.
Not really, which is the primary criticism Right to Disconnect has received. Not only are there no defined penalties for not agreeing on terms, but there are also no set penalties if the Right to Disconnect is breached.
There are cases, however, of employees suing their employers for disrespecting their rest times, which judges have found to be a violation of the Code du travail. In most cases, there hasn't been anything done beyond the condemnation by courts.
However, in 2018, a France-based employee of a British company was awarded €60,868.51 for having been required to be on call without providing any overtime pay for that. Having to stay connected outside of work was enough for the judge to characterise it as a breach to the Right to Disconnect.
If the Right to Disconnect in France has gotten so little attention so far, why am I telling you all this now? Because the French Government is putting a spotlight on it again and this time it's going to be taken more seriously.
It was recently included in a document the Government put together which advised companies how to handle fully remote teams. The text gave many points on how to improve the conditions of teleworking in companies after the start of deconfinement and pointed out in particular that the employer must precisely define the "time slots during which the employee is available". Furthermore, the document stated that if the employee has to remain available and active during these regular hours, they are still entitled to their breaks, including for lunch.
It's no surprise to me that the first time remote working is coming to the fore in the French ways of working, Right to Disconnect surfaces prominently. France has been legislating employee work-life balance for years. That has been necessary because, for the majority of professions, what counts are hours worked, rather than employee output. Keeping those limits intact is hard when there is no office to head out from or a computer to leave behind. With a steadfast belief that people are entitled to their free time, it may take a law to keep that intact.
Having worked remotely for years, I see it as a potentially important mechanism for preventing burnout because it sets the boundaries that both employees and employers are not always able to maintain. In the past, I certainly have crossed that line by being asked to work during my time off and agreeing to it. After being back in France for a few months, I am not sure that's a price worth paying anymore because I know I and everyone else performs better when we have had our rest.
There are many reasons why you should consider hiring someone legally and compliantly in France. For one, people who are so well rested will be a great asset to your company. Before you employ someone in France, you should familiarise yourself with the Right to Disconnect as well as with many other local employment laws (for example, it's the law that people get at least 11 hours rest in the span of 24 hours).
As you create the contract for your French employee, make sure to add a paragraph that states what are the hours that you may contact them and keep in mind that this is usually for some part of the 35 hours, rather than for all of them. It could something as simple as:
In order to respect the Employee’s private life, availability periods are fixed, during which the Company may contact the Employee by phone/email/DM. These time slots, on the days where the Employee works from home, are the following: from 10:00 am to 1:00 pm and from 2:00 pm to 6:00 pm. It is understood that these time slots are distinct from effective working time.
If you are not proactive about adding that paragraph, be mindful that your employee will probably bring up the conversation about their Right to Disconnect and will like to have an agreement on paper.
Once you agree on the parameters, be sure to respect them and remind your employee to always switch off notifications outside of those hours. If late at night, you get a bright idea or wake at the crack of dawn with something you need, be patient and wait until the agreed hours for connecting with them. They may have forgotten to switch off their notifications and will be disrupted by it.
We make it our business to understand local employment laws such as the Right to Disconnect so that we can be the best Employer of Record for your international employees. Our local employment contracts always include all necessary provisions like this one, so you don’t have to worry about any of them. If you want to employ someone legally and compliantly internationally, we can help.
In some countries, the Employer of Record model is not aligned with local employment legislation, which may restrict outsourcing of employment. To understand why Spain is a country we cannot currently support, it’s worth understanding how we operate in other countries.
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