Note published in Factor Capital Humano, Mundo del Trabajo [The World of Work] Section by Blanca Juárez.
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While several countries in Latin America and Europe have already made progress in legislating home office work, at least 12 bills remain frozen in both chambers of the Federal Congress in Mexico.
Teleworking existed in Mexico prior to the covid-19 pandemic. But it is in the midst of this crisis that the difficulty for conducting this type of work has been understood more clearly. Long working hours because, in the absence of legislation there are those who take advantage of the situation, are only part of the problems it carries. But other problems also include the lack of access to the internet or to a personal computer, the lack of an adequate space at home to conduct the work and the payment of services.
“The pandemic has enabled us to see that there is less incorporation into the technological stage than we assumed. In the best of cases, the possibility of connection reaches the middle class”, points out Alfonso Bouzas Ortiz, coordinator of the Citizen Observatory of the Labor Reform.
The digital gap thus creates a labor gap, he believes. Some people cannot access the network, either because of the cost or the coverage, or they cannot acquire suitable equipment. This would make them lose an opportunity and a job income. And, therefore, the circle of poverty continues.
In the opinion of Oscar de la Vega, a lawyer, “the companies and the employers have the responsibility of providing the necessary supplies and work tools”. And, in the case of teleworking, electric power, internet, a telephone and a computer are part of these tools, adds the founding partner of the De la Vega & Martínez Firm.
In 2018, more than 2.5 million people worked remotely in this country, according to the Teleworking in Latin America study, prepared by 5G Americas. That represented just over 4% of the economically active population.
By June 2020, 57% of the companies surveyed by the Willis Towers Watson consultancy Firm had implemented work from home for a large portion of their personnel. The survey was conducted among 143 organizations in Mexico, with over 514,000 employees in total.
The pandemic hastened the implementation of teleworking throughout most of the world, says Alfonso Bouzas, holder of a Doctorate in Social Law. “It is the only way to keep jobs and production under these limited conditions”.
This mode of work had developed mainly in Europe, he recapitulates in an interview. Germany, Switzerland, France are some of the countries that already had a legislation in this regard. Colombia, Brazil, Peru, Panama, Paraguay, Chile, Argentina and Spain approved legislations within the context of the pandemic.
There are 12 bills for the regulation of remote work in the Mexican Congress. One of them has already been approved by the Senate and the ruling is in the hands of San Lázaro [Legislative Palace of San Lázaro – Congress]. Another one is the one headed by the president of the Commission of Labor and Social Welfare in the Lower Chamber, Manuel Baldenebro. This bill establishes that the modality of teleworking must be governed by a contract and establishes the right to disconnection.
It proposes the creation of a registry of employers with teleworkers and classifies teleworking in three categories: when work is always conducted at a place outside of the company; when work is sometimes conducted at the company and sometimes at a place outside the company; and when “due to “force majeure” it is conducted after working hours.
In the opinion of Alfonso Bouzas, “in general, political forces have very little clarity on the particularities of teleworking”. Nevertheless, “given the need and the pressure, it is possible that we will end up with a bad regulation”.
The only “thing that the PAN [Political party] (the author of the bill coming from the Senate) is clear on is the need to obtain flexibility”. In the reform, as approved by the senators, “an employer, at his own discretion, can switch to the teleworking scheme without taking the opinion of the worker into consideration”, he warns.
|The basics for the regulation of home office work||The health emergency hastened the implementation of teleworking throughout the world and several countries have started to update their legislation to regulate this modality.
The following are the basic elements to take into account in a reform:
The agreement for the implementation of teleworking and the particulars of the modality must be established in writing.
The right that the worker and the employer have to choose the on-site modality or teleworking, without affecting their relationship.
The right of the teleworker to return to work at his work center to work in person.
|4 Equality and non-discrimination:
The guarantee of equality of rights between teleworkers and on-site workers.
|5 Workdays and working hours: The obligation to define working hours and workdays, availability schedule and supervision modes and mechanisms.|
|6 Deliverables: The obligation of remote workers to comply with the date and means agreed upon for the delivery of results.||7 Digital disconnection: The right of the teleworker to his privacy, to not answer calls, messages or emails outside of his working hours.
|8 Ongoing training: The right of the remote employee to receive training to improve his digital capabilities.||9 Work tools: The obligation of the employer to provide these tools for the performance of remote work.||10 Responsible use: The obligation of the worker to take care of the technological and communication tools provided to him.|
SOURCE: PREPARED USING INFORMATION FROM THE BILLS INTRODUCED BEFORE CONGRESS
Everything in writing
In 2019, when nobody imagined this crisis, ILO published the report Working anytime, anywhere: Consequences in the labor arena. In this report, they had already pointed out that a great disadvantage of this modality was “the tendency to work longer hours.” Additionally, the work-home interference causes work intensification.
Therefore, establishing workdays and working hours is one of the most important elements to be included in the legislation, in the opinion of lawyer Oscar de la Vega. For some employers, home office work means that the employee has to be available 24 hours a day, he regrets.
In addition to being impossible and unlawful, this could cause work-related stress, he warns. Being clear about the working hours is also important because, if teleworking is here to stay, when we can leave the house more freely “the employee could confuse this scheme with a part-time one and go to the supermarket during working hours or take the children to after-school classes”.
For Alfonso Bouzas, the essential requirement of teleworking is that the employee performs it voluntarily. Then, that it is governed by a contract that establishes as many details as possible. Among them, working hours and the right to disconnections once the workday is over.
In the case of on-site work, the labor relationship is accredited by “the simple provision of the service in exchange of remuneration. But, in the case of teleworking, this general rule is not sufficient”, it requires that the details be established in writing, he emphasizes.
All of the rights and complements of any “classic job: a seventh day, Sunday bonus, a vacation period and other salary complements” must also be set forth in this contract. As well as access to position promotions.
The challenge in Mexico is not minor, in the opinion of Congressman Manuel Baldenebro, “telework must be generated, expanded, promoted and disseminated in order to adapt to the reality into which the covid-19 pandemic has led us”.