On July 30, 2020, the National Senate approved the Legal Regime for Telework Contracts, which had already been approved by the Chamber of Deputies, thus obtaining the approval of both chambers. We cannot rule out the possibility that the text of the law may be modified upon promulgation by the Executive Branch, or even substantially modified through regulations or collective bargaining.
Below is a brief overview of the most relevant aspects of the new Teleworking Law.
Definition of Teleworking
The law establishes that a teleworking contract will be understood when the performance of acts, execution of works and provision of services, in the terms of articles 21 and 22 of the LCT[1], is carried out totally or partially at the worker’s home, or in places other than the employer’s establishment or establishments, through the use of information and communication technologies (“ICTs”).
It establishes that the regulation guarantees the minimum legal requirements for teleworking contracts and that the specific regulations for each activity will be established through collective bargaining, respecting the principles of public order arising from the Employment Contract Law.
working day
The working day must be agreed upon in advance and in writing, respecting current legal and conventional limits. The regulation establishes that platforms and/or software used for the specific purposes of teleworking must prevent workers from connecting outside of their working hours.
Right to digital disconnection
Teleworkers have the right not to be contacted and to disconnect from digital devices and/or ICTs outside of working hours and during leave periods. Workers cannot be penalized for exercising this right.
The regulation also establishes that teleworkers cannot be required to perform tasks or receive communications by any means outside of working hours.
Care tasks carried out by the worker
When the worker proves that he or she is solely or jointly responsible for the care of persons under thirteen (13) years of age, persons with disabilities or elderly persons who live with the worker and who require specific assistance, they will have the right to schedules compatible with the care tasks in their charge and/or to interrupt the work day.
Any act and/or conduct on the part of the employer that injures or restricts this right will be presumed to be discriminatory and the provisions of the Discriminatory Acts Law No. 23.529.
Willfulness
The transition from in-person to remote work must be carried out with the employee’s voluntary written consent, except in duly accredited cases of force majeure.
Reversibility
The regulation contemplates two distinct situations: on the one hand, an employee who, having performed in-person tasks, voluntarily switches to teleworking; and on the other, an employee who, from the beginning of the employment relationship, agreed to perform tasks teleworking.
The regulation contemplates two distinct situations: on the one hand, an employee who, having performed in-person tasks, voluntarily switches to teleworking; and on the other, an employee who, from the beginning of the employment relationship, agreed to perform teleworking tasks.
Failure to comply with this obligation will be considered a violation of the employment obligation provided for in Article 78 of the Employment Contract Law, and the employer’s refusal will entitle the employee to consider themselves dismissed or to take action to reinstate their previous conditions.
In the second case, where teleworking was agreed upon from the beginning of the employment relationship, the eventual change to in-person work will operate in accordance with the guidelines established through collective bargaining for each activity.
Work Items
The employer must provide the employee with the equipment, including hardware and software, work tools, and the support necessary to perform their tasks, without specifying which tools are to be provided. The employer must also assume the costs of their installation, maintenance, and repair. It is also possible for the teleworker to provide work equipment and for the employer to compensate for the use of their own tools. This compensation will operate according to the guidelines established through collective bargaining.
When work equipment is provided by the employer, the teleworker will be responsible for the proper use and maintenance of the equipment and tools provided and will ensure that they are not used by persons outside the employment relationship or contract. Under no circumstances will the teleworker be liable for normal wear and tear resulting from use and the passage of time.
In the event of damage or breakage in components that make it impossible to perform tasks, the employer must provide replacement or repair, without affecting the teleworker’s regular pay.
Compensation of expenses
Teleworkers will be entitled to compensation for any increased connectivity and/or service consumption costs they may incur. This compensation will operate in accordance with the guidelines established through collective bargaining and will be exempt from income tax.[2] The law does not clarify whether or not it should be considered remuneration.
Control systems and the right to privacy
Control systems implemented to protect the employer’s assets and information must involve union participation to safeguard the privacy of teleworkers and their homes. The employer may not use surveillance software that violates the privacy of teleworkers.
Transnational benefits
In the case of transnational teleworking services, the law of the place where the tasks are performed or the law of the employer’s domicile will apply, whichever is more favorable to the teleworker.
When the teleworker is a foreigner not resident in the country, prior authorization from the Ministry of Labor, Employment, and Social Security will be required. Furthermore, collective bargaining agreements must establish a maximum limit for this type of contract, based on the specific circumstances of each activity.
Registration – Supervision
The Ministry of Labor, Employment, and Social Security will keep a registry of companies that implement teleworking. Employers must certify the software or platform used and the payroll of employees under this modality. This information must be reported upon registration or monthly. This information will be forwarded to the relevant union organization.
Any inspection by the Ministry of Labor, Employment and Social Security, if necessary, must have the prior authorization of the teleworker.
Aplication
The rule will come into effect ninety (90) days after the end of social, preventive and mandatory isolation.
This report should not be considered as legal or any other type of advice by Allende & Brea.
[1] The teleworking contract is limited to dependent work, excluding this modality of self-employment.
[2] Law 20.628.
