The Invisible Leash – Why Most Employees Still Don’t Have The Right To Be Left Alone

by Jason M. Sarfati
November 20th, 2017

A friend of mine recently called me in a panic.  After returning from a weeklong vacation out of the country, his manager asked to meet in an empty conference room.  Apparently during his absence, the members of my friend’s team had missed an important deadline.  Although he was not personally responsible for the deadline itself, a critical component necessary to meet it was hidden away in a file that only he had access to.  Unable to locate the file, and unable to reach my friend either by phone or email, the team missed the deadline and his company was forced to pass on a major opportunity.  Frustrated by this turn of events, and perhaps seeking an easy scapegoat, the manager made the draconian decision to terminate my friend’s employment.

Many of you might be frantically asking yourselves whether such a termination violates the law.  After all, my friend earned his vacation after accruing enough paid-time-off to leave town.   Shouldn’t it therefore be his right to shut off his phone and disconnect if he wants to?  Interestingly, the employers’ action in this instance does not, on its face, appear to violate any current state or federal law.

Taking a step back from the heartless termination of a hardworking employee, the fact remains that staying constantly connected to the office has become a cornerstone of our work culture.  Many articles have been written on how technology, and smart phones in particular, have caused irreparable damage to our work-life balance.  Seeking to protect the demarcation between work and the home, the notoriously labor-friendly French Government recently enacted a law giving employees the “right to disconnect” from phones and emails when not at the office.[1]   The new French law, which applies to all French employers with 50 or more employees, went into effect on January 1 of this year.

France remains the only modern economy to enact such a broad right to disconnect law.  The U.S. has no “please just leave me the hell alone” law.  In practice, this means American employers are free to contact their employees after hours, weekends, or while on vacation if they so please. 

This does not, however, mean that U.S. employers are completely in the clear.  U.S. employers are still required to abide by all applicable federal and state wage and payment laws.  Under the Federal Fair Labor Standards Act (“FLSA”), employers are required to pay non-exempt employees for all time that is spent working.  Importantly, this includes not only work assignments given to an employee, but the natural results of such assignments, such as answering emails and returning phone calls.  Therefore, even if a non-exempt employee volunteers to check in or continue working from home after the end of their shift, the time spent doing work-related tasks would still be compensable.

So now you’re probably now staring at your email inbox on your phone hoping you’re a non-exempt employee.  Good luck.  Following a federal ruling this past August, all salaried professionals making more than $23,660 are exempt from making overtime. [2]  Naturally, this captures most of the beltway bandits we see constantly glued to their phones - including my dear friend who simply needed to go on a vacation.

In the absence of a law similar to that enacted in France, the burden shifts back to individual employees themselves to strike a balance.  As such, it’s critical that employees engage their managers early-on to agree upon mutually acceptable work expectations.  At the same token, it remains equally important that employers remember that their employees still have personal lives, and in all likelihood, giving their employees the ability to unwind and disconnect will likely make them more efficient when at the office.  

For those seduced by the allure of bringing France’s work-life balance to the United States - bonne chance.  You’re better off packing your bags and flying to France.  Just don’t forget to check your email while you’re away.

Jason Sarfati is a member of the International Association of Privacy Professionals (IAPP), the largest and most comprehensive global information privacy community.  Jason holds the CIPP/US certification (Certified Information Privacy Professional / US concentration), which means that he is particularly well versed in the data privacy laws that govern the private sector in the United States.  His practice focuses on advising clients how to comply with federal and state privacy laws governing the collection, use, retention, and disclosure of private or otherwise sensitive information.

Contact Jason Sarfati

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.


The JGL Law Blog is made available by the Firm and/or the law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law. The JGL Law Blog is not designed to and does not provide specific legal advice. Use of, or comments on, this Blog does not create an Attorney Client Relationship with the Firm or any of the authors of the Blog Posts.

This blog is for general informational purposes only. Joseph, Greenwald & Laake, PA is a law firm and some of the information on the blog relates to legal topics. Joseph, Greenwald & Laake, PA does not offer or dispense legal advice through this blog or by e-mails directed to or from this site. By using the blog, the reader agrees that the information on this blog does not constitute legal or other professional advice and no attorney-client or other relationship is created between the reader and Joseph, Greenwald & Laake, PA or its attorneys. The blog is not a substitute for obtaining legal advice from a qualified attorney licensed in your state. The information on the blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date. While the blog is revised on a regular basis, it may not reflect the most current legal developments. The opinions expressed at or through the blog are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. The JGL Law Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

To ensure compliance with requirements imposed by the U.S. Internal Revenue Service in Circular 230, we inform you that any tax advice contained on this site (including any links provided) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this communication.