Note published on May 23 in Impacto.mx, #Nacional [#National] Section by the Editorial Department
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“No idea. I didn’t know there was a home office law”, confesses Jessica Avilés. The social media specialist puts her work on hold to take my call, but she suddenly has to make another pause: “Wait, son, I’ll help you in a minute. But the teacher explained very clearly that you have to write it… Sorry, I’m back. And does that law take into consideration that women work more?”.
Last week, Congress amended the Federal Labor Law (LFT) and added Chapter XII Bis, on teleworking matters. The vaccine against coronavirus and the regulation have just arrived. Nine months after the Covid- 19 pandemic forced thousands of people to work from home, there are now rules on how to do this.
A relevant part is that working conditions are established in a contract. For example: working hours, the right to disconnection, the companies’ obligation to pay for Internet, computer equipment and furniture, among other elements.
Manuel Baldenebro, president of the Labor and Social Welfare Commission of the House of Representatives, acknowledges that they took a long time to issue a legislation on this topic. But he says that, had they done it before, “it would have been of little use in this pandemic. Additionally, it remains for future generations.”
In June 2019, the Senate issued a regulation on home office work. The memorandum reached San Lázaro [the seat of the House of Representatives] this year, but it wasn’t until December of 2020 that both Houses approved it. In the end, the resolution presented by Baldenebro included several of the suggestions made by the Citizen Observatory of the Labor Reform.
Defined hours and expenses
“The pandemic has shown us that labor exploitation is very frequent in teleworking”, states Rosario Ortiz, collegiate coordinator of the Network of Trade Union Women. That is why it is important that the final version of the reform established a workday of no more than eight hours and a time for taking lunch.
And hand in hand with this point we have the right to disconnection. “I try not to answer messages after 7, even though I used to leave work at 6. At the beginning, I answered them until very late and even on weekends. But the thing is that, if I don’t do it, my bosses see me as lazy”, shares Jessica Álvarez.
Article 330-E of the LFT now says that the employer has the obligation to respect the right of staff to disconnect. “They may not ask them to work or for suggestions outside of working hours. If the employer tries to penalize them, workers have evidence to protect themselves: the email or call registered at a time that is no longer acceptable”, Baldenebro points out.
That same article states that companies must pay for Internet service and the proportional part of electricity. They must provide their personnel with computer equipment, ergonomic chairs or printers. “Seriously? I had to buy a computer and it was an expense I had not planned to make”, says Jessica Avilés.
That amount is not part of the salary because “it is a compensation for the expenses that workers make”, states Oscar de la Vega, founder of the De la Vega & Martínez Firm. It is mandatory and it should not be taxed in the ISR, but, rather, the Tax Administration Service (SAT) “must consider it as a deductible item.”
In his opinion, this measure “hurts the economy of companies.” The objective is good, the problem is the timing: the pandemic, an increase to the minimum wage is coming, the reform to subcontracting and pensions. This continues to add up, and the elastic band has a limit.”
No gender perspective
The Second Transitory Article of the reform states that the Department of Labor and Social Welfare (STPS) has up to a year and a half to publish an Official Mexican Standard (NOM). For former representative Rosario Ortiz, this is not entirely appropriate.
The implementation of teleworking cannot be left in the hands of a labor standard. It was better to include more elements in the law to bring it down to earth.”
And this reform lacks a gender perspective, she adds. “They have a half an hour for lunch, but, who prepares that food and when? Working from home increases work disproportionally.”
Elements that feminist economy had raised and were considered to be far-fetched are becoming increasingly clear”, she points out. “The world of labor cannot be improved without taking into account that we require a national care system, for all of us [male and female].”
The State and the companies must create mechanisms for female workers “not to be anchored in their homes with a greater workload and become isolated. Right now, we are all at home, but this will end, and we will see in which condition we [females] are left.”
The 12 keys to the new regulation on teleworking
The Federal Congress unanimously approved the regulation of teleworking in Mexico in both houses. These are the main aspects of the new labor mode:
- Delimitation: It is considered to be teleworking when the person works at least 40% of the time from home.
- Contract: The agreement to implement teleworking and the details of the modality must be established in writing, whether on a personal or on a collective basis.
- Voluntary: The right of the worker and of the employer to choose the presential or the teleworking mode, without this affecting the labor relationship.
- Reversible: The right of the teleworker to return to work in a presential mode when this is possible for him.
- Formal: Teleworkers must be registered in the Social Security Institute as formal employees.
- Equality and non-discrimination: Guarantee of equal rights and benefits among teleworkers and presential workers.
- Days and hours: The obligation of defining working hours and working days, time availability and means of communication.
- Digital disconnection: The right of the person to his privacy, to not answer calls, messages or email outside of his working hours.
- Supervision: The right that employers have to supervise their employees by means of video cameras and microphones, without violating the right to privacy.
- Permanent training: The right of workers to receive training to improve their digital capabilities.
- Tools and costs: The obligation by the employer to provide work tools and to pay internet and electricity services in a proportional part.
- Specialized NOM: The STPS will have to issue an Official Standard to regulate safety and health aspects in this modality.