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Remote Work Agreements and Legal Security. Published in El Cronista on March 9, 2021
The world of business demands legal security in the new scenario of remote work arrangements, and Act No. 27555, reinforced by Executive Order No. 27/2021, has managed to design a model based on individual contracts that can ensure a reasonable level of safety.
Article by Julián A. de Diego published in El Cronista on March 9 16, 2021
On April 1, remote workers and employers should have a contract signed by both parties regulating their fundamental rights in the context where each company or activity operates. It is worth mentioning that this is the first labor law in the last 30 years that legislates thinking of the future and new technologies.
According to best practices and comparative law, the requirement under this Act that employees should follow the principle of “voluntary acceptance”, whereby they express their consent to the arrangement proposed by the company in writing. This is actually beneficial to employees because they can have their working conditions specifically laid down and agreed on an individual remote work agreement.
The fundamental rights that lawmakers wished to protect through legal technical remedies for the benefit of remote workers include: the right to disconnect, work schedules and flexibility, reversibility, reimbursement for business tools and expenses, monitoring systems and data protection and property inviolability, protection for company information and transnational rights.
Employees are granted fundamental rights, and since this is a bilateral, synallagmatic relationship by mutual agreement in which each party to the contract is bound to provide something to the other party, employers are given fundamental rights, too.
The right to disconnect that at first seemed to imply a limitation to the power of management, it is now redesigned under the contract as a way to ensure compliance with working hours and avoid any contingent claim for overtime when remote workers reply or send emails or work outside office hours.
The right to reversibility, i.e. the possibility of demanding the return to in-person work at employers’ facilities, must be exercised based on the principle of collaboration and good faith, and to this end it is indispensable for employees to comply with the following requirements: explain the reason for requesting in-person work; provide a reasonable period of time to go back to the office, and serve adequate notice for employers to make any adjustments to accommodate employees, if appropriate. Any changes in office layout included in the contract may condition reversibility in the future when employees know that the return to the workplace is unfeasible or requires accommodations or restrictions.
Telematics tools and expense reimbursement, both for the list of elements provided to remote workers and the conditions for use and reimbursable expenses, are mechanisms that reinforce control and the power of management and monitoring even through software.
Employers’ monitoring system through software is getting widespread and in order to be effective, the contract may include a provision whereby remote workers are not allowed to use the tools provided, whether hardware or software, for personal purposes, for domestic tasks or schooling, and should use them for professional purposes only. In turn, remote workers are not allowed to use the tools provided for personal emails or any private reason. Remote workers shall also authorize their employer to monitor their corporate email account in accordance with Section 153 bis of the Criminal Code.
Property inviolability is included under Article 18 of the National Constitution, and consequently, this right plays a crucial role when working from home. The enforcement authority, the Workers’ Compensation Insurance Companies and the Workers’ Compensation Supervising Authority, insurance, technicians in charge of repair or maintenance services, the union and the employer, cannot access employees’ home without their express authorization and must be careful when exercising their power to inspect work locations.
The protection for company information and confidentiality may be ensured through encrypted or protected systems, using antifraud software and policies to avoid crimes, such as money laundry.
Any conflict of laws in mixed cases that in principle are not solved by Act No. 27555, may be handled with the resulting model and the international law currently in force, leading up to the conclusion that distribution, decentralization, supranational laws for remote work give full freedom to hire employees to work from anywhere, regardless of employees’ actual address. In any case, the law of the place of execution of the contract will be the applicable law for validity, and the law of the place of performance of the contract will be the applicable law for implementation. The acting Court and applicable law pose some dilemmas for which solutions need to be found on a case-by-case basis.
Sigmund Freud said that “the best is the enemy of the good”, and in general change is denied and resisted without even knowing full well the benefits of innovation. And this resistance is due to ignorance or first-sight impressions, and the unknown is replaced with fantasies. This is to some extend the clearest manifestation of magical thinking, whereby logic is abandoned to hide behind diatribe and unfounded criticism. Remote work emerged in a context of unanimous rejection where CGT (Workers’ General Confederation), UIA (Argentine Industrial Union), companies and workers reached a crossroads. But all dilemmas end up crashing with reality, and now we need to learn to live with work-from-home arrangements, remote work policies, robotics and AI, which pose the challenge of taking hold of the entire future.
