It's a new business climate with do-not-disturb policies

Stephen Scott, BridgeTower Media Newswires

Growing up, I would hear stories from my dad (also an attorney) about how a successful day is one in which you respond to all incoming mail by 11 a.m. Of all the “times have changed” things that have occurred during my life (thanks, Grandma, for the 10 cents to use toward a big candy bar...), the thing I have the hardest time wrapping my head around is the reduced flow of correspondence back in the day.

Now, it is an undisputed fact that in today’s business climate, work always seems to be on the mind. According to the U.S. Bureau of Labor Statistics, the productivity of the average American worker has skyrocketed by an astounding 400 percent since 1950, which should come as a surprise to no one in light of the constant “you’ve got mail” tone. And yet, in the furious midst of our all-out race to the top, some of us have found ourselves running headfirst into the old familiar phrase: “work-life balance.”

Recently, cities, employers and countries have started addressing the shouts for “work-life balance” through the “Do Not Disturb” movement. For those of you who have never heard this term, I reference Daimler in Germany. There, it allows its employees to use software that blocks work emails sent to them during vacations, automatically deletes the emails/notes, and then notifies the senders what has happened. That narrative of an employee returning from a vacation without an overflowing inbox resonates with many employees.

Of interest to Oregonians is the fact that this is no longer a “European thing.” Earlier this year, a Right-To-Disconnect measure was formally introduced for consideration before the City Council in New York City. The measure would have: (a) prohibited retaliation against those employees who refuse to respond to after-hours employer texts, emails or messages; (b) required reinstatement for any employee terminated for failure to respond; and (c) provided damages in the form of lost wages, a $2,500 penalty and fines up to $1,000.

This movement has also spread to some American tech companies and industry titans. Widespread worker communication platforms, like Slack and Speakap, have already begun to develop software features that allow employees to select a do-not-disturb option when using their platform. It is only a matter of time in which they institute a similar “automatic-deletion” option like those in Germany.

With these emerging technologies in hand, employers have begun to incorporate these features into various aspects of the company policies – ranging from standard availability requirements to on-call procedures and even vacation time.

As with any emerging technological trend, though, there are always pitfalls.

Be sure to account for staffing and the nature of your business. If your client is arrested after midnight, or your patient starts bleeding out over the weekend, the last thing he or she will want to find is a “do not disturb” message on your voicemail, or a “Your email has been deleted” message in his or her inbox.

At least for now, there’s nothing stopping you from considering an employee’s decision to use or not use do-not-disturb options when making compensation or promotional decisions. In the modern workplace, work should be rewarded – and even more so when an employee voluntarily decides to go that extra mile. However, this may not stay the case, especially in Oregon.

Make sure your policy expressly outlines when an employee should and should not use the do-not-disturb feature – especially when you are using the use or non-use of the feature in making promotional decisions. If an employee is using it because he or she simply wants some time alone, you’re fine. But if an employee is using the feature because he or she is sick, or has anxiety or some related medical issue, your inadvertent consideration of that could expose you to liability for disability discrimination.

Ultimately, though, when it comes to determining which form of do-not-disturb policy (if any) is right for your company, the sky is the limit. Context is important, and what’s right for one company may not be right for another. Whatever the choice, take care to factor in the potential that a proposed Right-To-Disconnect Law may come through the state Legislature.


Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or