4.10.24
By Molly Wood, SPHR, MAOL Senior HR Consultant. 
Full disclosure, this is an editorial.
We have had SDEA members come to us asking about AB 2751, the proposed legislation that would create fines for employers who contact their employees during “nonworking hours”. The proposed bill provides for an exception for an emergency or scheduling, but otherwise suggests a fine of not less than $100 for a pattern of violation.
The introduction of the bill claims that “existing law makes it a crime for an employer to require or cause any employee to work for longer hours than those fixed”. This statement is incorrect, as the California Department of Industrial Relations states, “in general an employer may dictate the employee’s work schedule and hours. Additionally, under most circumstances the employer may discipline an employee, up to and including termination, if the employee refuses to work scheduled overtime.” Further, no notice is required before an employer may change an employee’s schedule or require overtime.
The bill also does not take into account that exempt employees don’t have a fixed schedule. They are paid for the work they do and are expected to meet productivity standards regardless of the number of hours needed.
This bill asserts that “an employee has the right to ignore communications from the employer during non-working hours”. This is true, and if the intention of the legislation is to disallow employers to discipline employees if they ignore communications during non-working hours, then it needs to be re-written to address that issue.
At SDEA, we encourage our members to adhere to best practices in regard to employee non-working hours. Specifically,
- Give as much notice as possible if schedules need to be changed or overtime will be required.
- If you are sending employees information after hours, but do not need a response during non-working hours, make that clear in your correspondence.
- If you do require a response, be sure to pay all non-exempt employees for time worked. For example, if you need to send a text to your employees saying that they have to come in an hour early the next day, and you want them to text you confirmation that they will be there, pay them an additional 5 minutes for their after-hours time.
- Don’t send unnecessary texts during non-working hours.
AB 2751 is another example of unnecessary legislation causing panic. Remember, at this point this is only a proposed bill. Of course, that doesn’t mean it won’t be passed. Give us a call if you want to strategize on after-hours communication in your organization.
We are HeRe with you. 858-505-0024.