Remote working and Workers’ Rights: Common Regulations and key differences  

Ageles Solana,  July 23, 2024

Working from home is not a new phenomenon but, post pandemic, this modality of work has increased significantly in Latin American countries, as in the rest of the world.

In a region characterised by labour structures with low overall intensity in the use of technologies (ICTs) and high technology gaps, it was to be expected that the implementation of telework would not be homogeneous in local legislation or among different groups of workers.

Although the region has reported progress in telework regulation, the rapid growth of telework has exposed a multiplicity of challenges that are being addressed by local legislation.

The challenge is to identify good practices that protect the rights, health and well-being of workers, and that generate an organisational culture that makes it possible to efficiently take advantage of the possibilities offered by new technologies, obtain productivity gains and efficient results in accordance with the objectives and possibilities of companies.

In Argentina, the Telework Law[1] modifies the Labour Contract Law to regulate the rights and obligations of the parties when the employment relationship is carried out at a distance.

As a definition, teleworking exists when the worker performs acts, works or renders services proper to the employment contract from the domicile of the person working or from places other than the employer’s establishment, by means of information and communication technologies.

The telework law does not apply when the work is performed in the establishments, premises or branches of clients who receive continuous and regular services from the employer. The telework law does not apply either when the work is carried out sporadically and occasionally at the home of the person working.

The switch to telework must be voluntary, except in cases of force majeure. The decision to switch to teleworking must be expressed in writing.

This reference to the voluntary nature of telework is provided for in most of the legislation in the region, with the exception of the legislation of Ecuador and Colombia[2]. Similarly, the requirement of a written agreement between supervisor and worker, or a reference to the applicable collective agreement, as a condition for participation in telework is also provided for in the legislation of Brazil, Costa Rica, Panama, El Salvador, Chile, Mexico and Paraguay.

The change from a face-to-face to a telework position can be reversed by agreement between the worker and the employer, provided that conditions exist in the company’s premises for the person to return to face-to-face work.

Rights and obligations

People who work under telework have, under Argentinean law, the same rights and obligations as people who work in person, including the right to remuneration equal to that which they would receive under face-to-face work.

Thus, workers have the right not to be contacted and to disconnect from their devices outside their working hours and during leave, which is essential in these times. The employer cannot require the worker to perform tasks or send communications outside working hours.

In Argentina, when the company’s activity is carried out in different time zones or when for some objective reason it is indispensable, the sending of communications outside working hours is allowed. In such cases, the working person has the right to respond only when he/she starts his/her working day, except in cases of danger or accident, force majeure, or due to exceptional requirements of the national economy or the company. In such cases, he or she must work overtime.

The law prohibits the establishment of incentives for the worker to stop exercising his or her right to disconnection. Increases linked to overtime pay are not considered incentives.

Finally, the worker retains all collective rights. For the purposes of trade union representation, they must be considered as part of the group of those who work in person and must be attached to a work centre or production unit in order to be able to elect or be elected to the bodies of the trade union association.

This reference to union representation is only provided for in the legislation of Argentina, Chile and Mexico.

Control system and the right to privacy
 

In Argentina, the employer’s control systems to protect the company’s assets and information must safeguard the privacy of the teleworker and the privacy of his or her home.

The employer must take the necessary measures, especially with regard to software, to ensure the protection of data used and processed by the teleworker.

The employer may not use surveillance software that violates the worker’s privacy.

These conditions linked to privacy and protection are not foreseen in the legislation of Peru, Brazil, El Salvador, Ecuador, Chile and Colombia.

In Spain, the issue is specifically regulated in Article 20 bis of the Workers’ Statute: "workers have the right to privacy in the use of digital devices made available to them by the employer, to digital disconnection and to privacy from the use of video surveillance and geolocation devices under the terms established in current legislation on the protection of personal data and the guarantee of digital rights".
 

Transnational benefits
 

For the Argentinean legislation, the law of the place where the worker performs the tasks shall apply to transnational telework benefits.
 

Occupational health and safety
 

Although teleworking avoids or reduces the risks of accidents that may occur on the journey to and from the workplace, this modality brings new occupational risks, both physical and mental.

Factors that can negatively affect the mental health of workers include long working hours, the need or perception of being available at all times and high workloads. In addition, musculoskeletal disorders associated with inadequate working postures or visual disorders associated with long hours in front of a computer screen or other digital devices can occur.

Therefore, regulations must, on the one hand, recognise the occupational origin of the damage suffered by workers’ health. On the other hand, they must also establish devices to prevent them, and finally, they must determine the mechanisms for labour inspection in this type of work in order to ensure that workers can carry out their work from their homes in an effective, efficient and healthy manner.
 

Working hours

In Argentina, the working day must be previously agreed in writing in the employment contract in accordance with the legal limits. The platforms or software used by the employer for teleworking must be developed in accordance with the working day.

In the region, legislation mostly provides information on work organisation (ordinary and extraordinary working hours, frequency of telework, workload, work location, performance evaluation and metrics, reporting, monitoring etc), with the exception of legislation in Peru, Brazil and Ecuador.
 

Elements of work
 

In the Argentinean legislation, the employer must:

• Provide the equipment - hardware and software - necessary for the performance of the tasks.
• Provide the necessary working tools and support.
• Assume the costs of installation, maintenance and repair of work tools or compensate the worker for the use of own tools.

The worker is responsible for the correct use and maintenance of the work tools provided by his or her employer and must prevent these tools from being used by others.

In no case shall the worker be liable for the normal wear and tear of work tools caused by use or the passage of time. In case of damage, breakage or wear and tear in the elements, instruments or technological means that prevent the performance of tasks, the employer must replace or repair them. The time it takes for the employer to fulfil this obligation does not affect the right of the worker to continue to receive the usual remuneration.

The provision of work items and compensation for expenses are not remuneration. Therefore, they do not form the basis of remuneration for calculating any item arising from the employment contract, nor do they form the basis for calculating trade union or social security contributions.

On the other hand, telework legislation in the region includes specific provisions on the costs associated with equipment and work elements in this mode of employment. For example, Chile’ s Law 21220 (Art. 152 quater L.) stipulates that ’Equipment, tools and materials for telecommuting or teleworking, including personal protection elements, must be provided by the employer to the worker, and the latter may not be obliged to use elements of his or her own property. Likewise, the costs of operation, functioning, maintenance and repair of equipment shall always be borne by the employer’.

Law 2088 of the year 2021 of Colombia (Art. 8) stipulates that ‘For the development of work at home and the performance of their duties, public servants or private sector workers may use their own equipment and other tools, provided that there is an agreement with the respective employer and/or public entity. If no such agreement is reached, the employer shall provide the equipment, information systems, software or materials necessary for the development of the function or work contracted, in accordance with the resources available for this purpose. The employer shall define the criteria and responsibilities regarding access to and care of the equipment, as well as the custody and confidentiality of the information in accordance with the regulations in force on the matter. In any case, the employer is the first responsible for providing the necessary equipment for the development of the activities, fulfilment of functions and provision of the service under the home-working qualification’.

For its part, Law 6738 of Paraguay (Art. 14) states that ‘They are obligations of the employer for the purposes of this law without prejudice to those provided for in other provisions in force: (...) c) Provide and ensure the maintenance of equipment, software, which may be varied in those cases where the employee, of his own free will, requests the possibility of teleworking with his personal equipment and the employer accepts, which should be clear in the contract or addendum and exempts the employer from liability for the use of the equipment owned by the teleworker.’
 

Final reflections

It is essential to consider the potential benefits and risks of teleworking. From the dialogue between governments, employers and workers it was possible to identify good practices that protect the rights, health and welfare of workers, although further work is needed to generate an organisational culture that allows companies to efficiently take advantage of the possibilities offered by new technologies and that this results in productivity gains.

Telework undoubtedly expands the frontiers of job search and offers job opportunities to people with different levels of education and skills. While the opportunities for teleworking are greater for those with digital skills, access to computers and the ability to communicate and work using other languages, the possibilities of finding opportunities out there and offshore multiply for a large part of the labour universe, strongly impacting the global market.

In Latin America, the ranking of the best countries to work remotely by 2023[3] highlights Uruguay, Chile and Costa Rica as the countries with the best conditions for remote work, considering aspects such as the economic and social situation, digital infrastructure and cybersecurity levels.

*Angeles Solana

Lawyer. Master in Labour Law and International Labour Relations.

Partner at Martinez, Solana, Oriolo. Lawyers (Argentina).

Executive Secretary of the Inlaw Alliance of Law Firms.
 

[1] Law No. 27555, enacted in August 2020.

[2] Source: ILO. ‘Panorama Laboral en América Latina y el Caribe 2021 Series’, p.23.

[3] Published by Statista Research Department, 7 Mar 2024.