Kenya has taken a significant step in addressing the balance between work and personal life by introducing a “right to disconnect” law. The Employment (Amendment) Bill 2022, which is pending before the Kenyan Senate, would give employees the right to disconnect from work-related electronic communications such as e-mails and text messages outside of their regular working hours – including weekends and public holidays. What are the four steps your business should consider to prepare for this new law if you operate in Kenya?

Key Provisions of the Bill

Besides giving employees the right to prevent their employers from receiving work-related communications outside of work hours, employers would be prohibited from taking adverse actions against employees for exercising their rights should this law take effect. This means that employees should not face any repercussions for not responding to work-related communications outside of their usual working hours. The 2022 Bill also emphasizes the need for employers to raise awareness and provide training to employees on the importance of work-life balance and the “right to disconnect.”

The 2022 Bill is a renewal of the Employment (Amendment) Bill 2021. The 2021 Bill, which first introduced the idea of the right to disconnect for employees in Kenya, lapsed due to the shortened parliamentary timetable which came as a result of the general elections of August 2022. The only difference between the two is that the 2022 Bill proposes a tighter restriction on permissible emergency contacts during off-hours: under the 2022 draft, employers may only make off-hours contact with an employee to the extent necessary to address a work-related emergency falling within that employee’s responsibility.

Background on the Right to Disconnect

Kenya is not the first nation to push for employees’ right to disconnect. As the digital transformation of the workplace continues to gain momentum, especially in light of the remote and flexible working arrangements adopted during the COVID-19 pandemic, many workers around the world feel that the boundaries between work and personal life have blurred – and lawmakers are responding to provide them with escape hatches.

In 2016, for example, France was the first EU nation to enact a law encompassing the “right to disconnect,” and other countries around the world have followed suit. Laws setting forth the “right to disconnect” all possess similar objectives: to combat work-related stress and burnout, to ensure respect for employees’ time away from work, and to adapt to the evolving landscape of working in the digital age.

However, while many have praised these moves as progressive and necessary, there has been considerable opposition to these laws as well. For example, opponents to such laws argue that the “right to disconnect” could hinder the flexibility that digital tools offer. This is particularly relevant for roles that require communication across different time zones or jobs that traditionally have non-standard hours.

There is also a concern that employers might prefer hiring candidates without familial obligations, as they might be perceived as more available after hours, even if the “right to disconnect” is in place. Similarly, some employees may choose to exercise the “right to disconnect” while others may not. This may lead to rising tensions in the workplace, as employees who choose not to exercise the right will be regarded more favorably than employees who do.

Moreover, some believe that a “right to disconnect” would reduce the competitiveness of companies on the global stage, especially against companies operating in countries without such regulations. This is especially important in Kenya, as national leadership has made significant efforts for years to attract and grow foreign investment in the country so as to develop the declining national economy. Critics fear that the “right to disconnect” will disincentivize foreign investors from partnering with domestic firms as business capabilities would primarily be limited to certain durations within each workday.

Implications for Employers and Your 4-Step Guide for Compliance

Should the 2022 Bill pass, employers in Kenya will need to review and potentially adjust their current policies, or draft new ones, ensuring that they reflect the “right to disconnect” principles. It will be vital for employers to clearly communicate these policies to their employees and train managerial staff to respect and abide by the rules.

There may also be a need to re-evaluate employee workload and performance expectations, ensuring that employees can realistically complete their tasks within standard working hours. Additionally, companies will need to implement mechanisms to monitor compliance with the “right to disconnect” and address any violations appropriately.

  • Engage Stakeholders: Involve both management and employees in the process of formulating and implementing the “right to disconnect” policy.
  • Educate and Train: Regularly educate and train all staff members, ensuring they understand the importance and boundaries of the “right to disconnect.”
  • Implement Technology Solutions: Consider using technological tools to manage after-work communications, such as setting up email schedules or using notification settings to respect non-working hours.
  • Review and Revise: Continuously monitor the effectiveness of the policy and be open to making necessary adjustments based on feedback and changing circumstances.

The introduction of the “right to disconnect” in Kenya represents a progressive step towards ensuring the well-being of employees in the digital age. It recognizes the challenges of an increasingly connected world and seeks to establish boundaries that promote work-life balance. Employers should act proactively to understand the implications of this Bill and take necessary measures to ensure compliance.

Conclusion

We will continue to monitor the potential “right to disconnect” of employees in Kenya or other regions of the world and provide updates as warranted. If your company operates in Kenya, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in our International Practice Group for additional information. Make sure you are signed up for Fisher Phillips’ Insight System to receive the most up-to-date information directly to your inbox.

Daily headlines trumpet multimillion-dollar awards for employers’ violations of a variety of state and federal employment laws. But equally deserving of attention are…

Resources with guidance in complying with a variety of federal statutes.

Your organization’s executive leadership just announced a new initiative that you’ll be responsible for sharing with your team—and you know it won’t go down well. Even… https://www.shrm.org/resourcesandtools/hr-topics/people-managers/pages/don’t-blame-the-messenger.aspx

Columnist Jathan Janove, a former employment law attorney who has worked with many organizations on culture, leadership and HR issues—and an older white man—suggests…

While we respect Taylor Swift’s accomplishments for so many reasons, your #FPSwifties particularly admire Ms. Swift as an employer. From employee appreciation (those legendary tour bonuses sound really nice!) to her commitment to diversity and fierce loyalty she shows to her team, a lot can be emulated from Ms. Swift in the employee relations arena. In honor of her being named Time’s Person of the Year, we have put together a list of resolutions so you can bolster your workplace processes and policies going into “New Year’s Day.”

#1: Are you “ . . . Ready For It?”

Are you a multi-state employer? Then you should be prepared for a number of states that are increasing their minimum wage starting January 1, 2024. Likewise, just like a re-record of an album, the salary threshold for the white-collar exemptions under the federal Fair Labor Standards Act is anticipated to increase in 2024. Think of it like Biden’s version of what President Obama initiated in 2016.

#2: “Is It Over Now?”

In 2023, the National Labor Relations Board continued its goal of retooling employment law (NLRB’s Version), issuing broad interpretations of the National Labor Relations Act which apply to union and non-union employers alike.

  • Earlier this year, the Board found confidentially and non-disparagement clauses in employee severance agreements were an unlawful restraint on employee’s rights. You’ll want to change your standard severance agreement practices if you haven’t already, and consider how to handle existing agreements that may now be considered in violation.
  • In August, the Board modified the legal standards used to evaluate handbook and other work rules. The Board now analyzes whether an employee “would reasonably construe” an applicable rule or policy as chilling protected conduct under the NLRA. To avoid a violation, employers must now show that workplace conduct rules are narrowly “Taylor-ed” to special circumstances justifying any infringement on employee rights. We urge you to review and update your handbooks, especially any “workplace civility rules” requiring employees to positively engage with co-workers which are likely to be deemed unlawful. We recommend reviewing at least once per year, which is less frequent than the time between Ms. Swift publishes her most recent re-records.
  • The Board also issued a rule which will greatly expand the concept of “joint employment” under the NLRA, leading to the potential of unfair labor practice charges by employees of your company’s subcontractors claiming “You Belong with Me” if you maintain reserved, unexercised, or indirect control over even a single working condition of the subcontractor’s employees’ employment.
  • If you think you’re “Out of the Woods,” think again. The Board has also expedited the union election process and made it easier for unions to attain recognition without the need for a secret ballot election. In 2024, we expect the Board to continue its trend, likely coming after non-competition agreements, providing the union with a right to use employer email and other technology, and prohibiting confidential employer investigations into harassment and workplace misconduct, among other things.

#3: “I Did Something Bad”

Taylor’s concerts in Brazil were marred by the unfortunate death of a fan due to overheat and exhaustion. In response, Taylor immediately postponed the following evening’s concert and put out a statement expressing how “devastated” she was by the incident. Undoubtedly, a number of strings were also being pulled behind the scenes to provide comfort to the young woman’s family.

Amidst this tragic accident there is a lesson learned for employers in how to handle employee complaints. In 2024, you should resolve to review your investigative process and identify any gaps. Do you have an internal reporting system that is working? Are your employees encouraged to report issues, even anonymously? Are you addressing these issues as quickly as possible to show your employees that you value their input? Are you concluding your investigative process by meeting with the complaining employee to notify them of your conclusions (to the extent you can) and reiterate your company’s prohibition against retaliation? If not, you can put together an investigative checklist for you and others to follow to ensure all steps are being followed. You also can meet with your supervisors for a lunch and learn training to show them best notetaking and investigative practices.

#4: “Dancing With Our Hands Tied”

When employers want to lawfully fire a problematic employee, they often find they could be exposed to a discrimination claim if that employee is in a protected category, or perhaps exposed to a retaliation claim if the employee has just returned from a job-protected leave. At that point, the employer needs to understand the risks associated with taking an adverse action against these employees (usually in the form of a lawsuit or administrative charge). To avoid that risk, you may have to feel a little pain in righting that disciplinary ship before making any other decisions about that employee. To avoid this in the future, you could have ongoing HR lunch trainings throughout 2024 to provide tips and tricks for supervisors so they remain engaged with performance management.

#5: “Look What You Made Me Do”

Are you a real Swiftie if you haven’t seen the video of T-Swift calling out the security officer for harassing a fan in the middle of singing “Bad Blood” at one of the Eras concerts in Philly at least a dozen times? “Hey! Stop!” Ms. Swift admonished security before picking back up flawlessly in her song.

Like Taylor, you, too, should resolve in the New Year to immediately address disciplinary issues instead of allowing them to fester and become even bigger problems. Similarly, you should ensure your supervisors and management team has been trained on documentation best practices. It is our experience some supervisors are skittish to officially document an issue, which creates a bigger problem that can ripple across your workplace.

#6: “Call It What You Want”

You’ve tried to work with the employee, but the castle is crumbling and now it’s time to take the next step and terminate the employment relationship. To ensure you are putting your organization in the best defensible position you must resolve in the New Year to document, document, document.

It is key to document the relevant decisionmakers, the facts considered in the decision, and the ultimate reason for the termination. It is key to list all relevant policy violations and consider what you have done in the past and ensure you are consistently enforcing the company policy. You should consider documenting the discussion with the employee noting the reason for the termination referencing any prior disciplinary actions, facts supporting the decision, and note the policy violation. Many employers elect to have two members of management and/or human resources sit in on the meeting to act as a witness. Also, just as Ms. Swift is keenly aware of always being filmed and/or recorded by paparazzi, you too, must assume that you are being recorded in any disciplinary meeting by your employees.

Conclusion

As you know “All Too Well,” even if you take all the necessary steps as outlined above the situation you may still be the “Anti-Hero” and should be prepared to defend your employment actions. Unfortunately, you cannot avoid all potential liability, but following the recommended resolutions may result in some positive “Karma” in the New Year.  

Be sure to sign up for Fisher Phillips’ Insight System to ensure you receive practical guidance directly to your inbox throughout 2024. If you have questions, contact your Fisher Phillips attorney or the authors of this Insight.

HR professionals perform a critical role in their organizations but often toil in anonymity. Many people don’t hear about the times when HR practitioners had a lasting…

Do employers have to make their employees aware of open positions? Is it detrimental to your career to make a lateral move into a different department? SHRM President… https://www.shrm.org/resourcesandtools/hr-topics/organizational-and-employee-development/pages/ask-hr-do-employers-have-to-let-current-employees-know-about-job-openings.aspx

In an interview with the ABA Journal, Chief Knowledge & Innovation Officer Evan Shenkman discusses Fisher Phillips’ role in testing and implementing Casetext’s AI legal assistant CoCounsel. Partner Danielle Moore also weighs-in and discusses her use of the powerful tool in her everyday practice.

To read the article visit ABA Journal.