“Means the work that a person, designated as a home worker, performs at his home or in other places of his choice, other than the employer’s work premises, in exchange for remuneration, to produce a product or provide a service in accordance with the employer’s specifications, regardless of who provides the equipment, materials or other items used for it, unless that person has the degree of autonomy and financial independence necessary to be considered as an independent worker under national or national law court decisions. (ILO Convention No. 177, on home work, 1996.)
Several bills are circulating today that seek to regulate the modality, so much in vogue today, of teleworking. Reading some of these projects has raised more questions than answers.
How to regulate a form of telework that is reasonable and balanced for the interested parties? How to achieve a successful result in the middle of a pandemic, without in-depth debates that contemplate the necessary gaze of all the agents involved?
Will it really be the employee’s decision to choose / demand the distance work modality or will it be a consensual decision between the employee and the employer? If the new regulations on teleworking are originated to contemplate a specific situation generated by a pandemic, how to reconcile voluntary decisions with legal requirements contained in a new regulatory framework?
Do we really believe that all people are trained to carry out their work tasks successfully in the telecommuting modality? Based on the experience lived in these months, I encourage myself to list in a “merely enunciative way” some of the competencies that I have identified as necessary (and why not, essential): autonomy, self-control, initiative, proactivity, adaptability, flexibility, discipline, order , management skills, priority management, self-management of times, security and commitment. And something no less important: ability to harmonize family life with work life.
When regulating the “home office”, will it be limited as a workplace to the employee’s home, or will it be extended to everything that is “out of office”? How will you regulate and apply insurance (accidents at work, accidents in itinire) and certain licenses (causes of occupational diseases)? With what flexibility will the working hours and overtime be regulated?
Will the company be obliged to cover the higher costs of creating virtual offices for each of its employees? Should they also maintain the same conditions in the face-to-face offices in the event that the employee (or both) decides to modify their work modality? It may be convenient to contemplate a minimum period for the employee (or both) to support their decision to telework. But if the results expected by the company are not achieved by the employee, can the chosen modality be reversed? Will these future changes affect the exercise of the ius variandi? Will the evaluation parameters be different for face-to-face or virtual employees? Will this be regulated by law?
Who will be in charge of the maintenance and control of the material means, equipment and technological tools necessary for teleworking? How will the connectivity of the employee be ensured, and who will be responsible if this does not happen? How to set the limit of the use of work tools for personal use? Very possibly it is necessary to contemplate and regulate the management of confidentiality and the protection of data and information by the employee, and at the same time provide the necessary tools so that these assumptions can be met.
How will the collective right to telework be applied? How will occupational hygiene and safety be controlled at the employee’s home? How will the balance between certain routine “inspections” and the right to privacy be regulated? Should each home have occupational hygiene and safety standards? Whose responsibility will it be that these standards are met?
Can a SME company face the higher cost that restructuring its organization may mean to adapt it to a new working modality of such characteristics?
Aspects such as the need for a specific space in the employee’s home, changes and effects in their family environment, variability in the costs of the employer and the employee, and above all very deep cultural (personal and organizational) changes, should be considered. Especially in terms of its real incidence and feasibility.
Finally, it will be necessary to develop training and training actions for employees (and their hierarchical superiors) to successfully enter a world that many companies (and employees) still do not know. It is very different to promote and develop a telework culture in the midst of a pandemic that “forces” us into social and work isolation, than to do it in a context of full freedom of choice. Different will be the conduct of companies and employees when society “adjusts” to a new “normal”. We will then see if teleworking continues to be the option to be chosen by the majority and, if so, if we have an appropriate legal framework that promotes a work modality that is superior in all its aspects.
(*) the author is NOT a lawyer specialized in labor law.