Nearshore Americas

The Right to Disconnect: A Human Right?

In March 2020,  countries around the world authorized lockdowns to stem the spread of Covid-19. In response, many workplaces decided to apply work-from-home schemes almost immediately to keep businesses open and avoid a severe loss of jobs. Practically overnight, even the most teleworking-reluctant employer or employee was now forced to accept this change. 

However, working from home blurs the lines between our working day and our personal time. No longer do people wake up and prepare for the commute by car, bus, or train to the workplace. Employees now have work mail apps installed on their phone to check emails at any time, and frequently receive work-related calls or messages at night, on a Sunday or even when on vacation. 

This side-effect of the pandemic has caused us to work longer hours to the detriment  of our health, and our personal and family time. According to an ILO report regarding teleworking during the pandemic, 1 in 4 employees say that they must work during their rest times to cope with additional work. An analysis conducted by US internet provider NordVPN said employees are working 3 hours more than before the pandemic began. This is without mentioning the struggle of employees that must care for children, elderly or relatives with disabilities, while managing to work longer hours from home.

Worse yet, due to the challenges of supervising a teleworking workforce, most of this extra time is not considered for overtime pay.

The Right to Disconnect

This trend has raised concerns about the effects of burnout on employees, as well as our permanent connection to software work tools. As such, more and more voices are demanding more stringent employment regulation on the issue, starting a discussion on whether we should recognize a right to disconnect from the workplace. Such a right implies that employees have the right to disconnect from their devices when their workday ends, to ignore phone calls or not answer messages or emails outside of that timeframe, without risk of retaliation, unless the employer duly compensates as overtime. 

Can this right to disconnect be considered as a minimum employment human right standard? 

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The grand scope of employment rights was not previously considered to be justiciable rights in the international protection system for human rights. Such consideration stemmed from the fact that most breaches of employment law come from private employers. Our international system revolves around state obligations, not private individuals or corporations, meaning that, in a traditional sense, a person could not claim in an international system or court a breach to employment rights caused by a private entity. 

Although this is the current situation, new case law has considered the fact that states do not supervise compliance with minimum employment standards to be a breach of international obligations.

Employment Rights in The Americas

In The Americas, employment protections are considered within the scope of articles 16 and 26 of the American Convention. The Inter-American Court has reviewed several state breaches regarding the protection of employees against termination for freely expressing their opinion, as in the case of Lagos del Campo against Peru, or more recently, the violation of the right to work in a safe environment in the case of employees in a firework factory against Brazil. 

The first Convention of the ILO, adopted in 1919, was for the implementation of the 8-hour per day, 48-hour per week limit to industry employers

So, it is more apparent that, even though employment rights are for an employer to comply with, there is an international obligation for nations not only to recognize them in their laws but also to supervise that such rights are being complied with. 

Ever since the beginning of employment law as an independent legal branch, the fight for an 8-hour workday has been ever present. It was a resounding victory of worker movements that we today have laws that limit the amount of time we must work. The first Convention of the ILO, adopted in 1919, was for the implementation of the 8-hour per day, 48-hour per week limit to industry employers. Covenant 30 continued that trend internationally, and today it is not uncommon that local law restricts workdays based on this regulation. 

Conclusion

As such, the right to disconnect, in my opinion, already exists: an employer simply cannot force an employee to work more than the contracted hours without compensation, whether that work is done in a workplace or remotely at home. The same way that before you could not call an employee in the middle of the night to help with work, in the same way it is not okay to send an email requiring urgent response outside of the workday, or sending a text message on vacations or holidays. 

I cannot deny, however, that recognizing the right to disconnect will dramatically improve the understanding of prohibited conduct, as well as the subsequent enforceability. 

Employment regulations must be updated to deal with the use of software that allows us to be connected to our employment obligations 24/7. 

The right to disconnect and respect of the workday limits is an employment human rights issue. As such, it should be overseen by states,. A lack of this supervision can expose the state liable to international human rights processes. 

Let’s hope this lockdown helps us learn the importance of a work-life balance.

Daniel Valverde

Daniel Valverde is a partner at Ecija in the area of Labor Law and Human Rights. His main duty is to be the point of contact for clients on labor-related matters. He consults in employment law and human rights, a field in which corporations will have a key role in the future. You can contact Daniel here: dvalverde@ecija.com

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