Brazil requires overtime for out-of-hours email

Reading the Financial Times report saying that Brazil has introduced a new law requiring companies to pay overtime to employees who make or receive work phone calls or email outside office hours got me thinking about how much I would have had to be paid to compensate for out-of-hours email and conference calls that I’ve had over the years. It’s kind of in the class “if I had a cent for every email, I’d be a millionaire by now”. I therefore conclude that I could never now work in Brazil. Oh well, end of plans for carnival in Rio!

I wonder whether this attempt at government regulation will be any more successful than France’s attempt to limit the number of hours that people worked after the introduction of the famous 35-hour working week in 2000. This law was greeted with joy by many workers and seemed pretty socially progressive at the time. However, it posed all manner of practical challenges in terms of operation, especially for international companies. How, for instance, should one deal with foreign workers who visited France and wanted to work longer than the seven hours allocated to each day, perhaps because of jet-lag? And how could one deal with the foreign influence of conference calls scheduled in places like Palo Alto that didn’t take account of the shortened working day? Things got so bad that labor inspectors monitored the arrival and departure of people in car parks to measure the hours spent at work and then attempted to fine companies when too many hours were clocked up.

Of course, today’s working life meshes seamlessly with social interaction at so many levels in such a way that it is impossible to separate communications into clearly defined buckets, especially when those communications are directed to devices such as a BlackBerry. Is an incoming call from a fellow worker something to do with a work project or just an invitation to some after-work drinks? And could that social gathering be construed as work if someone chats about some aspect of office life or a recent project? The Brazilians will have to deploy listeners at strategic locations to eavesdrop on conversations to ensure that this form of intermingling doesn’t occur and that chats remain firmly focused on fun rather than office politics unless an overtime payment is duly forthcoming. Not that office politics aren’t fun sometimes.

And it’s even worse when email arrives before or after office hours, especially if like me you have all of your email accounts redirect messages to a common destination so that only one inbox has to be scanned for important happenings. We shall have to stop this kind of thing to enforce clear and absolute separation between work and social email unless overtime payments are forthcoming. Woe betide those who receive work email into a social inbox or vice versa. 

Perhaps electric shocks could be incorporated into mobile devices sold in Brazil and coupled with intelligent software running on the devices so that any attempt to look at a work email outside hours is rewarded by a short, sharp shock. Or maybe third party software vendors can bring out new add-on products for Exchange, Lotus Notes, and other on-premises email servers that when installed will cause the server  to refuse to deliver email to mobile devices out of hours unless the company has agreed to pay overtime. If an agreement is in place, the same software could usefully track the number of work messages processed by each user and sent this data to accounting so that the overtime can be paid. Even better from the company's perspective, perhaps the software might track incoming social email and charge recipients for the CPU, disk, network, and other overhead required to process, store, and deliver messages. After all, workers can't be the only ones to win out here.

Life will be even more difficult for the cloud providers. If you don’t want to pay overtime, you can always turn an on-premises email server off or physically disconnect it from the network to interrupt the flow of incoming messages. You can’t quite do the same thing for an Office 365 datacenter unless Microsoft and the other cloud providers can come up with methods to a) identify all the Brazilians who shouldn’t be receiving work email out of hours, b) separate work and social email, c) register an agreement between individuals and their employers to allow for overtime to be paid, and d) either block the flow of new mail to any client that Brazilians might care to use or report each and every message that’s read back to the employer so that the user can be paid.

There are all kinds of complexities that one can anticipate in terms of practical implementation. For example, you can’t rely on the locale selected by the user because not everyone in Brazil might select Brazilian. Some, like those working for international companies, will probably select “U.S. English” or another valid choice. How do you handle visitors to the country – are they under the same prohibition? Do the restrictions apply to diplomatic buildings or can we all head to our respective embassy to pick up new mail free of charge in the evening? And who pays the fines if a cloud provider inadvertently delivers a message that’s read by a user out of hours and overtime isn’t paid? Is it the cloud provider who facilitated the offence or the employer of the user who read the message?

I think Brazil will end up withdrawing this law because it simply won’t work and as we all know, unenforceable laws are worse than useless. But the attempt to help Brazilians become attached to work email and phone calls on a 24-hour basis does reflect a problem in our society where work and play have very blurred boundaries and work can exert a magnetic attraction through the demands of email that take away from family, friends, and other useful activities. I’m sure that there is goodness in attempting to help people recognize that always-on email can be a bad thing, but I’m not at all sure that forcing overtime payments is the right way to address the problem.

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