In Episode 193 of The Workplace podcast, CalChamber Associate General Counsel Matthew Roberts and CalChamber Senior Policy Advocate Ashley Hoffman discuss a new bill in the California Legislature that would prohibit employers from communicating with employees during nonworking hours, AB 2751 (Haney; D-San Francisco).
Tagged as a job killer by the CalChamber, AB 2751 prohibits any employee working for an employer of any size from contacting another employee outside of their normal work hours except in very narrow circumstances and would subject employers to costly litigation for any dispute as to whether the communication was permissible.
Hoffman explains that under this bill, an employer must establish a written agreement between every single employee, establishing when their nonworking hours are. An employer could contact a worker during their nonworking hours only for an emergency, or for scheduling within the next 24 hours.
Exempt vs. Non-Exempt Employees
The bill does not specify whether the rules apply to exempt employees. Exempt employees do not have fixed hours, and in California there are strict rules for classifying an employee as exempt.
“We have some concern that this actually restrains an exempt employee’s flexibility, because it forces them to basically write out a set working schedule, which is really contrary to the concept,” Hoffman says.
‘Solution in Search of a Problem’
Roberts points out that the rules of AB 2751 are redundant because California already has substantial protections in place for non-exempt employees to discourage off-the-clock work, especially amid the California Supreme Court’s recent direction that employees are going to be paid for all hours actually worked, even down to the minute.
Hoffman agrees. California has some of the strictest overtime laws in the country and is one of the only couple of states that actually has an eight-hour daily overtime requirement, in addition to the Fair Labor Standards Act (FLSA) weekly requirement. California also has reporting time pay, which has been interpreted broadly in recent court cases, she says.
“California has pretty robust laws, and given my experience in my former practice, because of that, employers have really strict policies limiting overtime work and other work,” she says.
Given that both exempt and non-exempt workers are heavily regulated in California, AB 2751 seems to be a solution in search of a problem that doesn’t exist, Roberts says.
Exceptions, Litigation Component
AB 2751 contains two exceptions. The first is for an emergency, which is defined as something that would disrupt operations. The second exempts scheduling within the next 24 hours.
The scheduling exception is tricky, Hoffman says. What if an employer needs to reach out to someone on a Friday about something that’s coming up on a Monday, or if they want to reach out to schedule a shift in 36 hours, which is so close to the 24-hour window given?
Hoffman also questions why the bill exposes employers to litigation for contacting their workers about scheduling.
“I’m someone who if there’s a work emergency that’s going to be happening tomorrow, I’d rather get a heads up about it. I may want to take a couple of extra hours to work on it. And then my colleague may not want to see an email on it until later—they might not want to deal with it until tomorrow. So, at the end the day, I think every employee works differently, and our laws are already very, very protective of those differences and protective of workers as far as working outside of normal hours,” she says.
