The Legal Side of Working From Home

The Legal Side of Working From Home

What’s the current situation with working-from-home available options? How does it work?

As a remote worker with a law degree, I can tell you first-hand, it’s the “Wild West” for people who (used to) work in offices. But, in a good way!

The current “lawless” situation is actually based on compromises. Employers and employees have never been so friendly with each other and willing to grant all work-related wishes as they’re doing now, during the pandemic.

Hey boss, can I work from home today? Yeah, buddy, sure thing. No problem at all.

How many (what) days can I work from home? I don’t know, you tell me. You know what? Suit yourself.

My family and friends scattered all over the world are having the time of their professional lives. They’re happy. They’re relaxed. They’re in control.

I hate to be a bearer of bad news, but here’s the thing. You can, and you will (very likely) work from home indefinitely. However, you won’t be able to do so without any regulations.

What is this supposed to mean, and why is it important for both employers and employees?

The Lawmakers in Turkey Are Leading The Work-From-Home Way

It turns out that the lawmakers in Turkey realized that verbal relationships rather than written relationships should include an amendment to the labor law.

The author of the article I’m referring to quoted an attorney who explained the reasoning behind the new Turkish labor law regulations:

"Because of the pandemic, the remote work tendency has increased. So the regulation has been drafted to actually [align] with the new requirements and the new practices born out of this remote work."

You can’t argue with that, can you? But, what does it mean in practice? Here’s an amendment in a nutshell:

The employee and the employer must have a written contract before starting remote work, he said. Employers and employees must agree, beforehand and in writing, on the definition of the work, the hours, the duration of the remote work, salary-payment methodology, and the tools and equipment that will be provided. This allows for consistent procedures as more companies look toward long-term remote-work arrangements.

The key point is that “the arrangement must be mutually agreed upon, except in extreme circumstances.”

It’s worth getting back to a lawyer, I mentioned earlier, because he was kind enough to clarify the details of new legal requirements:

"The regulation doesn't say that there is a requirement by an employer to choose remote work, but it only says that under some conditions the employee may request it, and upon the agreement of the employer, the remote-work relationship can start. During some force-majeure times, like a pandemic or an earthquake or something else, the employer can also decide to continue to work in a remote-based relationship. … Other than that, you cannot change the employment conditions only with the employer's decision. You need to have the consent of the employee as well."

He really thought it through, didn’t he? A pandemic isn’t the only force-majeure that can force people to work from home. True. And, there’s that magic word - the consent. True again. This is how it should be done to make sure both parties are happy with the work despite unpredictable and unfavorable circumstances.

New rules for the new world we live in. Kudos to Turkey and its legal system, which showed us that where there's a will, there's a way. Now, let’s see what’s happening on the other side of the world.

The Day After Tomorrow in England - July 19

The British Prime Minister, Boris Johnson, has some good news for his fellow citizens. As of July 19, the Brits will be able to breathe easier even with their masks still on. The majority of COVID-related restrictions will be gone or soften. There’s just this question left that’s on everybody’s lips: Can I still work from home?

Yes, you can, but there’s a catch. I have to say that I’m a bit disappointed that you can find more details on how many people can attend a wedding, including the social distancing rules, than how is your new back-to-the-office daily routine is going to look like in the post-pandemic world:

“The guidance on working from home will go, the prime minister announced, and messaging on the issue will end. It is ultimately down to employers to decide whether to keep staff at home or in the office, but the government says employers are able to plan the return of staff to the workplace.”

What’s even more interesting is that the United Kingdom isn’t going to be exactly united on July 19: The changes to Covid rules, announced by the prime minister, only impact England and will not change regulations in Northern Ireland, Wales or Scotland.

Obviously, “micromanaging” isn’t Boris Johnson’s thing. So, it’s up to each individual government and employer of the kingdom to decide how and when they will “lift coronavirus restrictions,” including work-from-home and back-to-the-office possible scenarios.

There’s a striking contrast between the keywords used in Turkey to regulate the legal side of work from the home situation - mutual agreement, and “ultimately down to employers” British formulation. I’m not taking sides, but rather stating the obvious.

When a mutual agreement becomes a legal obligation for both parties, employers and employees, then there’s plenty of maneuvering space for making all kinds of win-win work from home scenarios. On the other hand, the word “ultimately” can ultimately be interpreted as an ultimatum to employees who have second thoughts about returning to work. If it’s only up to one side to decide, in a British case - the employers, I’m afraid many employees won’t have much of a choice. I’m afraid it’s going to come down to a company’s way or find-yourself-a-new-job highway.

Hey, Uncle Sam. What Is Your Work From Home Jam?

According to the US Fair Labor Standards Act, employers can implement remote and flexible working for their employees as long as they maintain an accurate record of the hours worked. Where an employee is allowed to work from home, the relevant provisions can be included in their employment contract.

The land of the free wants to be fair to every single work from a home bee. However, it’s not that simple. In one of its most recent volumes, the National Law Review pointed out some Legal Implications for Telecommuting / Working from Home in Response to the Coronavirus, such as:

  • "Establishing a Work-at-Home Policy"
  • "Payment of Employees While Working at Home"
  • "Switching to Part-Time Work"
  • "Potential Disability Considerations"

It’s not enough to be aware of all potential legal implications. You have to do something about it. That’s why my hat off to the Executive Editor for Global Content at Computerworld, Galen Gruman, who wrote an article: The work-from-home employee’s bill of rights. My amen to this particular line, “it’s time for employees to advocate for themselves, so they don’t bear a disproportionate burden in enabling the new remote work reality.”

Because we all know that this new remote work reality can be quite a legal challenge. Government agencies have begun actively encouraging employers to develop remote work policies and programs. I appreciate all the efforts, encouragement, and recommendations in this field. I really do, but I’m afraid that we need more than that.

To ensure fairness and transparency, we would need both arms of the law, which shouldn’t be only long, but also open to welcome an army of remote workers. And, I’m not talking about I-Am-The-Law Judge Dredd’s style of handling things, but rather formalizing our new remote and work-from-home reality. That’s all. How hard could it be?

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Posted 2 months ago

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