Our latest edition is out in print and online this month. Subscribe today and start reading.

Everyone Should Have the Right to Disconnect From Work

Portugal has banned employers from making nonemergency contact with staff outside of working hours. The “right to disconnect” is a good idea — but more protection is needed for precarious workers who aren’t on fixed schedules.

Earlier in November, Portuguese lawmakers made it illegal for bosses to contact employees after working hours. (Daria Nepriakhina / Unsplash)

Earlier in November, Portuguese lawmakers made it illegal for bosses to contact employees after working hours. The new law states that, except in instances of force majeure, “the employer has the duty to refrain from contacting the worker during their rest period.” Companies found breaking the new rule risk heavy fines. The measure was drafted by a parliamentary committee focusing on the brave new world of working from home. But since it constitutes a change in national labor law, it will apply to all employees, whether working remotely or commuting to the office.

News of this policy being implemented in a small country at the butt of Europe quickly made global headlines. In a world still trying to figure out which working arrangements are temporary and which are permanent, deep into our second year of intermittent lockdowns, any such intervention is bound to be seen as avant-garde. Yet while the measure seems particularly relevant in pandemic times, it is neither previously unheard of nor a response to a COVID-19-specific problem.

In 2016, the French government passed a law enshrining the “right to disconnect,” protecting workers from any penalties deriving from not responding to emails and calls outside of working hours. That same year, similar legislation was introduced by the Italian and Spanish governments. In Germany, while the policy is not yet law, it has been a popular practice among some of the country’s largest employers since the early 2010s. This April, Ireland brought in a code of practice that supplements existing legislation protecting employees from overwork.

But the Portuguese law also goes beyond the idea of a worker’s “right to disconnect.” It shifts the onus onto the employer to leave the employee alone outside of office hours. This is no mere semantic difference but means pushing back against bosses having free rein. Law drafted in other European countries, in the best of cases, gives workers some tools to defend themselves from bosses’ excesses — if they find it in themselves to fight back. The Portuguese version makes those excesses illegal from the start.

Yet while the new law has much to be celebrated, it met with tellingly mixed reactions on the progressive side of Portuguese politics. It was approved in parliament without the support of either the Communist Party or any centrist forces, bar the governing Socialists. The Left Bloc showed wavering support for the proposal, abstaining during the drafting stages but ultimately voting along with the Socialist Party.

The reasons for these conflicting views perhaps partly lie in these forces’ political understanding of the right to work (and rights at work) under a capitalist system. But mostly, they boil down to the vagueness of the document’s language and the knowledge that on the ground, there’s bigger problems to solve before hailing the right — or the duty — to disconnect.

Compensating for Bigger Problems

Portugal has long been among the European Union (EU) countries with the highest number of annual working hours. Last year it placed eleventh in Organisation for Economic Co-operation and Development (OECD) rankings, with an average of 1,613 hours per worker. This was itself a significant decrease from pre-pandemic times: The 2019 data showed Portuguese workers putting 1,745 hours of their year into labor. For comparison, the EU average is 1,513 hours a year, while workers in Germany, the lowest-ranking country, average around 1,332 hours. This means that they work over seven (forty hour) working weeks a year less than their Portuguese counterparts.

But while these statistics do integrate often overlooked considerations such as unpaid overtime, they cannot convey the whole of the working culture in these countries. Portugal, for all its powerful trade union history, has been crippled by decades of counterreforms and cultural indoctrination, added to endemic low pay. Workers’ rights won throughout the revolutionary year of 1974, rippling into the end of that decade, were by the mid-1980s ripped apart with the onrush of the neoliberal era. In their place, successive Portuguese governments installed a system that provides mediocre subsidies to the unemployed rather than defending workers from easy dismissal or their right to decent salaries.

By 2019, the average monthly salary was around €1,300, according to official statistics, and the minimum wage €600 a month: an income the 21 percent of the population estimated to be living on the lowest legal salary found it hard to get by on. In 2021, Portugal is into a second generation of workers used to job precarity, miserly pay. and a working environment fertile for abuse. Remote working only aggravated an already gruesome situation.

Disconnected Reality

“Maria” is a customer care assistant at a call center. Her problem hasn’t so much been her immediate line manager but the information technology team she works with. Issues with passwords and other accessibility problems are often resolved after her working hours, via text. But the intrusions have sometimes gone beyond a quick WhatsApp exchange. In the “most serious” case, Maria had complained about an issue with her screen and hadn’t heard back from the responsible technicians for a while. But “as soon as I went on vacation they called me at 7 AM and demanded from my supervisor that I turn on the computer.” She had to argue with her manager in order to be left alone during her break.

Some years ago, in the region of Leiria, a derelict hotel hired the services of maintenance worker José Bettencourt Costa e Silva. The building was particularly dilapidated, meaning José would often be called by management after his working hours to solve various problems. “As I was able to understand the infrastructure, whether it was air conditioning, water heating, etc., I was able to do a guide-through over the phone.” It happened many times — and his extra, unpaid labor was so appreciated that even after he left the job José was often called up to train new personnel or give a little help when none was as easily found. The interruptions ended up disturbing his domestic life, too: “I’m a heavy sleeper, so I wouldn’t wake up, but my wife would wake up with the calls and wake me up in turn.”

José thinks the new law is a good step forward, even if only to pressure companies to pay for the time spent by workers doing their job when they should be resting. However, José knows that in crisis situations the boss will and could potentially still legally contact workers, no matter what time of day. On that point, José is pragmatic: “It can happen but [in a way] that it is valued.” It’s just that in his case “it was never valued or remunerated in a package, [so it was] impossible to quantify [how much of it was out-of-hours work].”

And herein lies the biggest critique of the new step: its vagueness. The Portuguese call center workers’ union STCC called it “insufficient and worse . . . very unclear.” According to the union, the STCC was invited to contribute to the parliamentary committee’s work, but its suggestions submitted over the summer were invisible in the final document. In the same statement, published over the union’s social media channels on November 14, the STCC questions what constitutes a case of force majeure that would allow employers to legally interrupt workers’ rest.

Indeed, while most would agree the reading of force majeure should be reserved for greater tragedies, it isn’t hard imagining some bosses bending the definition to their will. Could the hotel where José worked argue that the issues for which his services were needed were de facto emergencies? How will the law face the growing problem of the sudden unavailability of a worker to show up to work (say, if they are diagnosed with COVID) and management needing to urgently replace them?

We might especially wonder how it would help a worker like Ana Catarina. This summer, the Lisbon student applied to work at a camping site. Ana Catarina was never given an “actual contract” but needed the cash badly and went along. As a member of staff, she too camped on-site and was given a job at the cafe-bar, which seemed like an all right deal. But things quickly turned sour. “As soon as I got there I found myself working more than eight hours a day, almost every day. I ended up working up to fourteen hours, effectively having to ‘fill in shifts’ and only having one day off a week, which would be interrupted by calls and messages from the boss.” Whenever a colleague didn’t show up, regardless of the hour or the day, Ana Catarina’s manager would harass her to cover for them. Her working schedule or any plans she might have made for resting days were constantly ruined. “We effectively couldn’t refuse and say no. Basically, as we were afraid not to be paid, and as there was no register of us working there, we had to put up with it.” Yet the new reform makes little provisions for situations of unregulated casual labor, on which many Portuguese workers depend. But even had the situation all been above board, wouldn’t Ana Catarina’s boss’s need for emergency staff replacements fall under force majeure?

Time to Do More

Portugal’s Authority for Working Conditions (Autoridade para as Condições de Trabalho, ACT) has long had policies on maximum weekly laboring hours (forty), overtime (never more than 150 hours a year), and rest (every five hours labored and at least eleven hours between two working days). That said, there are exceptions and legal loopholes, including the so-called “adaptability regime” that many employers have used indiscriminately during the pandemic to legalize their remote-working staff. Safe to say, it’s a working system full of gray areas, where workers are often left at the company’s mercy due to their legal illiteracy.

“Changing the law does not change social practices. Time abuses have many dimensions, and labor relations are marked by great inequality,” wrote Left Bloc MP José Soeiro on his Facebook page. “But that the law gives this sign is of great political and legal significance. And it means workers have one more weapon to wield in the fight for their time.”

The problem then lies — as it so often seems to— in the Left’s eternal parliamentary juggling between promoting immediate reforms without compromising the end goal. Besides, with general elections at the end of January 2022, each party’s position in parliament is also about signaling to its own electoral constituency. For the Left Bloc, the gains of the new labor legislation were worth voting for. The Communists were seemingly determined to go further.

In the end, workers in Portugal will see whether bosses fulfil their new “duty” and if penalties are actually applied to those who don’t. And only workers in Portugal will be able to tell whether all the fuss in the international press over the policy was worth it — or whether more revolutionary measures are needed.