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Global Solutions Episode 5: Virtual Workplaces Worldwide—Working from Home Across the Globe

The effects of the COVID-19 pandemic, which encouraged employers and employees to adapt to new models rapidly, will likely reverberate in U.S. and global workplaces for years—with a move away from traditional brick-and-mortar offices as a sustainable mode of working. Since telecommunications capabilities have advanced, the practice of employees working remotely has grown. Post-COVID-19, even industries that had not previously considered remote work (depending on the location, the terminology varies from “remote work” to “home work” to “telework” to “telecommute”) have been required to adapt. In a global context, employers must navigate vastly different rules, regulations, and employment practices to maintain compliance.

Nearly every government’s COVID-19 response involved employers allowing employees to remote work where possible, and many governments continue to recommend or require it. As cases rise again, companies that have reopened their offices anticipate having to return to telework. These unique circumstances allowed employers outside the United States (where employment relationships are governed by contract) to make unilateral decisions in implementing telework where they otherwise would have needed to consult with employee representatives or obtain individual consent.

As global employers contemplate the long haul of teleworking, they must develop sustainable solutions in line with government regulations, where they exist. The European Union’s (EU) framework agreement preceded COVID-19 by nearly two decades but set out basic rules that EU members have adopted, which are illustrative of underlying concepts helpful in developing global policies. The framework agreement includes principles regarding home-workspace safety, agreements on the conditions of remote working, equipment and data rules, and rules regarding equal treatment. Post-COVID-19, the Korean Ministry of Employment and Labor (MOEL) issued a comprehensive advisory document on teleworking imposing considerable expectations on employers (the MOEL guidance), including reaffirming the obligation to consult with employees of labor management councils on relevant terms before implementing telework programs. In France, new teleworking regulations apply at the national level, and separately under certain collective bargaining agreements like SYNTEC national collective bargaining agreement.

Before jumping in on a country-by-country level, employers navigating sustained telework on a global scale can start with a few key principles that govern the strategy in many jurisdictions.

Workplace Safety

Entirely outside the COVID-19 context, workplace safety laws impose obligations on employers regardless of where their employees are providing services—in the office or at home. Employers can satisfy these requirements in a variety of ways. Some specific examples include:

  • Employers in the Netherlands are required to ensure the ergonomic safety of their employees and bear the costs of ensuring an ergonomically safe environment.

  • In the United Kingdom, employers are required to conduct a suitable and sufficient risk assessment of the home workspace of any employee who will be working from home long term.

  • For South Korean employers, normal workplace safety regulations apply, and employers must account for the possibility that an at-home injury could warrant a workers’ compensation claim.

  • Colombia requires employers to conduct a workplace safety evaluation of teleworkers, who are considered a specific class of employees. The same is recommended for teleworkers who take advantage of the government’s extension of the once-per-week legality of remote working to five days per week. This can be done by videoconference.

The EU framework agreement also requires that employers maintain work safety protocols even if the workplace is the employees’ home. This can be accomplished by having the employee submit photographs of the workplace or by sending a representative of the employer to inspect the home workplace and ensure it is safe. Post-pandemic, employers can conduct due diligence by asking employees to self-certify working conditions. A sample self-certification can be found here.

Equipment and Costs

Under contract-based employment principles, employers may not reduce an employee’s compensation unilaterally, with implications for employees working outside of a traditional office environment. In an office, employers provide all work tools and necessary implements to carry out an employee’s job functions—likewise, in situations involving a move from office-based work to remote work, employers need to meet that standard or prepare for employees to request reimbursement or payment for their own associated costs. Because access to the internet is a key feature of most remote work jobs, regulations related to the provision of home internet service have become a feature of the COVID-19 regulatory environment. Under the new South Korea guidelines, an employer need not reimburse for internet service the employee already had but must reimburse for increased speed, if needed. France has a similar requirement. El Salvador requires employers to either pay for teleworking equipment or, if the employee chooses to use his or her own equipment, the employer must pay the depreciation value. In essence, any costs employees must incur for supplies, equipment, or services are fair game for employees under contracts to seek reimbursement—employers may avoid unexpected challenges by identifying those prospects proactively and documenting them in any policy they wish to implement.

Wage and Hour Issues

Because of the increased attention to work hours, tracking hours at home is another hurdle that employers that permit employees to telework must overcome. Globally, employment is generally restricted to a legally delimited workweek—and overtime work is an unusual occurrence for which employers must often apply or that employers can justify only by extreme need. The EU framework agreement indicates that employers must provide some sort of time tracking software or program for employees to track their time and that employers provide employees with necessary breaks and overtime.

Additionally, a number of jurisdictions have enacted “right to disconnect” laws. These laws allow employees to shut off their email or phones after hours and mandate that employers refrain from requiring employees to respond after their shifts. In a remote working context, these laws create additional challenges for employers.

Teleworking Across International Borders

Any global teleworking arrangements may want to consider the prospect of employees working in a different legal jurisdiction than the one in which their payroll division is. This topic is addressed in detail in Global Solutions Episode 4.

For some employers, implementing expanded telework arrangements is the ultimate global solution. In considering options, working through the above categories proactively may preempt common issues.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 197

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About this Author

Daniel D. Dauplaise Immigration and Labor Employment Attorney Ogletree Deakins Law Firm Stamford, CT
Associate

Dan is a Stamford, Connecticut based associate in the Cross-Border Practice Group, a team of attorneys based in five countries dealing with employment and mobility issues involving two or more countries. Dan is a native Spanish speaker and his practice focuses on Latin America, but also supports clients in the EU, and Spain in particular.

Dan advises clients on the negotiation and preparation of employment agreements, most recently in Brazil, Colombia, and Argentina. Additionally, he counsels multi-national corporations on the preparation and...

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Associate

Ethan Isaac focuses his practice on helping clients navigate a variety of labor and employment related challenges and disputes.  Ethan has experience defending employers against allegations of workplace discrimination, harassment, retaliation, violations of wage and hour laws and worker’s compensation retaliation in both state and federal courts. Ethan also handles administrative charges for employers across various industries, including before the United States Equal Employment Opportunity Commission, the Connecticut Commission on Human Rights and Opportunities and other state agencies.  Ethan also advises clients on a variety of internal policies and practices, including handbooks, reasonable accommodations, and paid time off. Ethan serves on the firm’s Global Covid-19 response team for international issues, specializing in the Europe, Middle East and Africa region.

203-969-3119
Rebecca Emery Labor & Employment Attorney Ogletree Deakins Law Firm

Rebecca advises on both contentious and non-contentious employment matters and data privacy.

Rebecca trained at the UK’s largest boutique employment firm and gained experience working on cross-border matters through the Ius Laboris network of international law firms.

Rebecca has advised professional services companies on Employment Tribunal matters where data privacy has become an issue due to tactical use of Data Subject Access Requests (“DSARs”) by litigants.

As a former police investigator,...

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