The right to disconnect – A solution for the new world of work?

Digitalization leads to more flexibility in the world of work.  Working remotely is no longer an exception. Employers offer work assignments to potential contractors ("crowdworkers") via online platforms and apps, making the integration of employees into traditional company structures obsolete in many cases while “dissolving” the boundaries of work, both in terms of location and time.  At the same time, digital tools (e.g. through the use of AI) offer almost infinite possibilities for employee monitoring. Susanne Auer-Mayer is Head of the Institute for Austrian and European Labor Law and Social Security Law at WU Vienna. Her research focuses on the impact digitalization has on labor law. In recognition of her research, Susanne Auer-Mayer has been named “Researcher of the Month” February.   

How can labor law protect "crowdworkers"? How can we separate work and leisure time for those working remotely and what are the legal consequences of our always-on culture? Do we need a new "fundamental right to disconnect from work"? Are employers allowed to monitor remote workers while teleworking?

Blurring boundaries between work and leisure

The classification of work time and leisure time is of great legal significance. Employers risk administrative penalties if they violate working time regulations and employees' pay entitlements usually dependent on it. The distinction between "working hours" and "rest period" is particularly difficult for remote workers. In the past, the focus was on whether the employee was obliged to stay at a certain place in order to be able to perform their (core) duties at any time. A mere on-call duty was not considered working time, as employees only had to be reachable by telephone while other aspects of the remaining leisure time were not restricted. However, if people generally work remotely from a location of their own choice, the reference to local ties does not apply. Regarding the response time in the event of a call, there is the problem of remote workers having relative flexibility in terms of location, which is why comparatively tight time constraints cannot per se be defined as working hours. The frequency with which work actually occurs also plays a role. If, for example, work-related emails are to be expected on an ongoing basis - even if with short interruptions - the possibility for employees to freely dispose of their leisure time is considerably limited, which speaks for a classification as working hours. Making decisions on individual cases remains difficult.

The problem of being constantly available

Dealing with this “always-on culture" raises considerable problems: Employees carrying around smartphones with their work email accounts installed are likely to receive emails and calls in their free time. Does this period qualify as on-call time? If so, it is inadmissible in this form as on-call duty is by law permitted on a limited basis only (on a maximum of ten days per month). Secondly, the consequences of answering emails during leisure time are unclear. Even such "minimum" work activities might qualify as working hours, thus interrupting the obligatory rest periods. In this area in particular, current labor law is facing problems. On the one hand, there is the need to protect the employees’ health by preventing them from constant "on-call work". At the EU level, there are even discussions about implementing a "fundamental right to disconnect from work" in order to protect employees from being constantly available during their free time. On the other hand, there is the desire for flexibility (also on the part of employees).