Texting Employees after Work: Is It Illegal?

Editor's Note: Take a look at our featured best practice, Employee Harassment Training Workshop (17-slide PowerPoint presentation). According to the Equal Employment Opportunity Commission, Harassment is a form of discrimination that violates many different laws, for example, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of [read more]

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Technology plays an ever-increasing role in how employees communicate and work together in today’s workplace. This raises some questions about whether employees can be reached outside of work hours or not.

Some employers responded by banning after-hours emailing and texting to their employees. However, some see this policy as ineffective, particularly when employees work remotely from each other. Both paths may have their merits, but more importantly, to know that your office policies still follow the laws governing employees after they leave the office.

Find out more about whether it’s illegal to text employees after work in this post.

The Right to Disconnect Law

In 2017, France passed a law allowing employees to refuse to answer work-related messages after working hours. The law came in response to a 2004 court decision, which determined that an employee’s failure to answer his work phone outside of regular working hours isn’t a valid reason for dismissal.

Though the law doesn’t determine its exact implementation, it mandated that companies and employees should create their own rules around the time off from work. The law further states that employers should compensate for time spent answering work-related text messages or calls. While many countries have businesses that prevent from contacting employees after work, on weekends, or during holiday periods, France is the first country to legislate a right to disconnect—giving workers the right to switch off after they clock out.

Portugal: A Case Study

Following France, other countries have also begun to look into ways for employees to disconnect after work. Countries like Germany, Italy, Slovakia, the Philippines, and Canada have taken steps to implement company policies that have similar effects, and legislative bodies are submitting bills and even passing amendments to existing labor laws.

Portugal is one of the recent countries to introduce a law prohibiting employers from contacting their employees by email or text messages outside of working hours. In 2021, with its effort to enable a virtual workplace culture, it introduced a law obligating companies to set hours when employees won’t be contactable or risk fines if they do so. It also required companies to compensate employees for responding to communication after work hours, similar to France’s law. The law, however, doesn’t apply to companies with less than ten employees and exceptional circumstances defined by the law.

Is It Illegal to Text Employees after Work?

While the laws about texting after work are clear in Portugal and France, the debate about whether it’s illegal to text employees after work has remained in countries like the United States. Some people believe it’s not a problem as long as the texts aren’t work-related or done for exemplary reasons. Others argue that it’s unethical because it can give the impression of intrusion or harassment.

Currently, the US has no legislation similar to the French law specifically banning communication after work. It could be because of its “always on culture,” where individuals feel obligated to answer their phones anytime. It could also be due to high-stress jobs where everyone’s expected to do more with less time resulting in the need for constant connection with co-workers even off duty. With all these views being expressed, one thing remains true: it’s not illegal to text employees after work if there’s no law prohibiting it.

The Do’s and Don’ts of Texting Employees

Texting employees outside of work hours should be avoided as much as possible. However, if you need to message them after work, ensure you do so respectfully and appropriately. Think about what words to use when communicating with them. Be polite, avoid sarcasm or profanity, and keep texts brief.

Also, remember that there are times when texting an employee is completely inappropriate. Instances include when they’re on vacation and protected leaves.

Leaves

Your employees are entitled to leave, and it can be highly inappropriate for you to ask them to check in via text or phone at these moments. Not only is it inconsiderate, but it may also cost you as an employer. That’s because your action may be interpreted as an interference in their legally allotted time off. The same goes for sick leaves—if they aren’t feeling well enough to talk, then chances are they won’t feel up to talking on the phone either.

Vacations

To go on vacation is a right, not a privilege. Not only that, vacations are believed to help employees maintain their productivity. Thus, if your text’s purpose isn’t urgent and can wait, then it’s best to wait until your employee returns from their vacation. Otherwise, you might make it harder for them to do their job well.

Ending the Debate

How individuals work has evolved, so it’s usual for employees to check email and respond to texts after they leave work. Yet while there are no federal laws explicitly prohibiting this action, employers can have their own policies against texting at any time outside of working hours. This might put an end to this debate once and for all.

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