Resolution No. 23/2020, on the regulation of telecommuting as a special work modality dated as of 11/12/2020.
By: B. Génesis Rodríguez | Senior Associate
Concepts and Relevant Definitions.
• Telecommuting: Special modality of work that is provided remotely, either partially or totally, making use of tools related to information and communication technologies.
• Face-to-face work: It is the one that is provided in the workplace determined by the employer.
Requirement of mutual agreement and written agreement.
The application of telecommuting will be voluntary and will be conditioned to a written agreement between the parties, which is mandatory for the creation of said contract and / or modification of the existing one. (Art. 3)
* I understand that this implies the need to adapt contracts for workers who, as a result of COVID-19, have been taken to telecommuting.
• Obligation to register the telecommuting contract.
Telecommuting agreements must be communicated to the Dirección General de Trabajo (DGT) which will keep a record of these.
• Obligación de adecuación.
30 days from the promulgation of the resolution.
Telecommuting agreements prior to the resolution must comply with the criteria established in this resolution and be communicated to the Dirección General de Trabajo (DGT).
The change to telecommuting in existing contractual relationships will not modify the essential conditions of the employment relationship.
Working hours and Overtime.
• In the case of overtime and night shift, the employer must have the mechanisms that allow it to keep track of these, for their fair payment, in accordance with the provisions of the labor code.
• Subject to the provisions of the labor code. Must be notified to the Ministry of Labor through the Dirección General de Trabajo (DGT).
• The flexibility and execution of the day may be agreed between the parties, provided that the precepts established by the labor code are respected.
• During working hours, the telecommuter must be available for the requirements of his employer. Once the working day is over, the telecommuter has the right to digital disconnection, for having finished the working day agreed between the parties.
Content of the contract or addendum to the telecommuting contract.
Description of the telecommuter tasks. Conditions under which the work will be performed.
Duration of the agreement, whether for a specified or indefinite period.
The place or places where the work takes place.
The salary agreed upon by the parties.
Establish whether the employer will be able to verify the conditions of the workplace, either at the beginning of the telecommuting relationship or during the execution of this.
The list of tools provided by the employer for the provision of the service, if applicable, and the conditions in which they are found.
Who will be in charge of the additional costs to cover, if any, for the provision of the service.
The service provision schedule, including the corresponding breaks.
The organizational unit or department to which the telecommuter will be assigned and will report within the company.
The contact details of the supervisor, to whom you can contact if you require information.
The supervision system or mechanism that will be paid for and used by the employer to verify compliance with the working day.
If the parties so agree upon, the possibility of having one or several days of in-person work at the company’s installation, to avoid computer fatigue and promote interaction with other co-workers.
The conditions to establish the reversibility of the provision of a telecommuting modality to face-to-face and vice versa.
Main obligations and powers of the employer.
• Provide the telecommuter with the necessary equipment, tools, materials and training to carry out the contracted work.
• Assume the operating costs of operation, maintenance, and repair of the equipment and tools provided to the telecommuter.
• Inform the telecommuter about the protection and handling of data, risk, and penalties for their misuse, and prohibition of the use of equipment and / or computer tools by third parties.
• Clearly agree on the breaks established in the work code.
• Will be able to install computerized controls of the service delivery schedule in the work tools.
• The policies for evaluating the performance of telecommuters may not be discriminatory compared to the policies for evaluating the performance of face-to-face workers.
• The company may not require the installation of control mechanisms in the electronic devices belonging to the workers.
• These devices may not be used to carry out the provision of the service, unless otherwise agreed upon and with due compensation.
Main obligations and rights of the telecommuter.
Safeguard all equipment and materials provided by the employer and use them exclusively for work activities.
In the event that the telecommuter has to use their own resources and equipment to carry out the work, the parties may agree to a compensation according to the inputs provided by the telecommuter.
The telecommuter is responsible for the custody and use of the information; both the one provided by his employer for the execution of telecommuting, and the generated product of his work, which must be used exclusively for the execution of his work functions.
Telecommuters will enjoy the same union and collective rights established in the labor code as face-to-face workers.
Digital Disconnection.
In Europe it is a recently recognized right, especially in Spain.
The right of the worker to not answer requests and / or messages outside of their normal working hours.
Reversibility.
• It is the right that assists both parties, to request a change from telecommuting to face-to-face, at the employer's facilities; in those relationships that had started in person.
• There must be formal and written notification within a period of thirty (30) days in advance, without prejudice to the fact that the parties may agree on a different term.
• Said change will be communicated by the employer to the Dirección General de Trabajo (DGT).
• Labor relations that begin as telecommuting will not have the right to reversibility without an agreement between the parties.
Final thoughts.
• All the provisions of the labor code that have not been addressed in this Resolution remain in force and applicable to the employment relationship.
• Duty of adaptation and express registration from the resolution for all those who exercise telecommuting.
• It is recommended that all aspects of tools, working hours, flexibility, compensations used, and the right of reversibility be clearly agreed upon.
By: B. Génesis Rodríguez | Senior Associate
The PELLERANO NADAL team is available to answer any questions regarding this or any other topic of interest to you.