Portugal banned bosses from texting employees after work. Could it happen in the US?

Employers in Portugal will now face fines if they attempt to contact remote workers after hours, thanks to a new law.

The legislation was conceived by Portugal’s ruling Socialist party to improve work-life balance for the country’s remote workforce, which expanded due to Covid-19, and to make Portugal a more attractive base for international “digital nomads” – people who travel while telecommuting.

Portugal isn’t the only country modernizing its labor laws; citizens of France, Spain, Belgium, Slovakia, Italy, the Philippines, Argentina, India and more, all currently enjoy “the right to disconnect” – or abstain without punishment from working and communicating with their employers during designated rest periods.

In 2013, Germany’s employment ministry implemented a ban on employers contacting workers outside of contracted hours, and several of the country’s large employers, including Volkswagen and Daimler, have instituted policies intended to limit the number of emails employees receive outside of work hours, too.

The provincial government of Ontario is also introducing legislation that would require employers to establish a written policy setting generous “expectations about response time for emails and encouraging employees to turn on out-of-office notifications when they aren’t working”, according to a government release.

Could this ever happen in the United States?

“I don’t think that we’ll see a firm requirement of employers to not at all contact employees during non-work hours,” says Orly Lobel, professor of law at the University of San Diego.

While California does have laws against employers forcing employees to work overtime, and mandates that all overtime be paid, Lobel thinks that adopting and enforcing rules about work hours on a federal level would be overly complex and contradictory to the nature of globalized professional work, in which urgent tasks inevitably crop up and must be dealt with by someone.

“I just don’t see it as a frontier right now,” she says, “when there are so many things that could be better.”

“We have a long history in the United States of not having policies that make it easier to work and have a life, or work and have a family,” says Julie Kashen, director of women’s economic justice at the Century Institute.

Despite paid family and medical leave being one of the most popular bipartisan policies, the fact that Congress is struggling to get it through 28 years after passing an unpaid version “does not bode well for the US taking additional steps in our laws to respect boundaries,” says Kashen.

Historically, the US has emphasized productivity, profits and the bottom line above all else, Kashen says. It relies on a capitalist system that has never involved an equitable, inclusive vision “that really addresses all of the different realities of being a human being”.

The countries that are actively protecting people’s right to a healthy work-life balance are responding appropriately to modern work culture. The mass adoption of technologies have created “always on” conditions in which off-hours and weekends can be work time as well. Today’s workers need help reinstating the parameters between work and life that social and technological change have eroded.

There’s little doubt that people without sufficient worker protections are getting fed up and burned out. That’s especially true since the pandemic collapsed the distinction between work and home. It’s not surprise then that the US is also in the midst of a “great resignation”, with 4.3 million Americans quitting their jobs this August alone.

Lobel and Kashen believe America’s most realistic path towards enforcing firm work-life boundaries will have to come from corporations instituting more accommodating policies themselves.

There are practical reasons for corporations to apply such policies. Many studies, including 2017 research by the German Federal Institute for Occupational Health and Safety, and a 2018 report from the Pamplin College of Business, Virginia Tech, support the fact that after-hours workplace communication produces stress, negatively affects employee mental health, and can spill over into affecting employees’ families.

Competitive workplaces are already becoming increasingly flexible to attract desirable candidates, and that trend can be reasonably expected to continue and incorporate more stipulations about the right to disconnect.

Yet while the corporate route may be most realistic, it isn’t the only feasible way for Americans to secure protected off-time.

“It is absolutely legally possible for US lawmakers to pass a law similar to the one passed in Portugal,” says Veena Dubal, professor of law at the University of California, Hastings College.

“The impediment is twofold. One is rooted in the power of industry; the business lobby would never allow something like this to pass. The second is simply that US lawmakers and courts have historically been very reticent to interfere in business decisions,” she explains.

In the US, the presumption has long been that the property right of capital outweighs the labor rights of workers. “But this is a presumption, not a legal restriction or boundary,” says Dubal.

“We can transform this presumption through a cultural shift that might emerge through and with the labor movement.”