Note published on January 17 in El Economista, Capital Humano [Human Capital] Section by Gerardo Hernández
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The regulation of teleworking has now been in force in Mexico for one year and, despite this, the adjustments made to the labor legislation have not been fully applied yet and legal strategies to evade them are being used.
“They told me no”: this was the answer given to Sandra González when she asked whether she would be provided with tools to work from home. Sandra has already been working remotely for six months, in 12 hour shifts in the area of technical support of a company dedicated to the sale of GPSs.
During her recruitment process she was told that her position would be remote. Sandra asked whether she would be given the benefits outlined in the teleworking reform, but the company’s response was a negative. “I have my own equipment and pay for my utilities” shares Sandra. According to a survey conducted by OCC Mundial, 73% of people working remotely have no access to the rights set by the Federal Labor Law (LFT).
The reform on teleworking entered into force in January 2021 and established that the new provisions are applicable when a new worker works more than 40% of his weekly labor hours at a domicile other than his work center. On that same month, the Department of Labor and Social Welfare (STPS) established a position in which it ensured that the regulation could not be applicable in a context such as the pandemic in which teleworking is a response to restrictions due to the health emergency.
One year later, the scenario is not the same and epidemiological traffic lights allow the return of workers to face-to-face activities. Specialists agree that given this scenario, it is no longer feasible to justify non-compliance with the reform due to the pandemic, as the continuity of teleworking is already perceived as a decision of each organization.
In the opinion of Jimena Sánchez, partner at the D&M Abogados Firm, the pandemic was never a sufficient reason for not applying the modifications. “Teleworking did not cease to be teleworking due to a contingency issue. Thus, if you meet all of the criteria defined by the reform, that is, it represents more than 40% of your working hours and it is through the use of information technologies, it is teleworking regardless of the motive.”
For Carlos Ferran Martínez, managing partner of the Ferran Martínez Abogados Firm, even if there is a clash of interpretations around the entry into force of the reform in the context of the pandemic, the reality is that the market is currently in the ideal moment for conducting modifications to the contracts of teleworkers.
“Now, the discussion on who will remain working in the teleworking mode starts to be relevant. Definitively, there is a recuperation of mobility, of economic activity, many companies are returning gradually or in full, and others have no intention of returning and, thus, the question and the analysis that must be made is: how many of my staff will stay working in the teleworking mode”, states the specialist.
According to the survey conducted by OCC Mundial, only 27% of the universe subject to the new rules of teleworking has signed a modification to their contractual conditions to give certainty to the modality. But only 26% of those who work in the home office modality received equipment and material to work from home, the rest —as well as those who maintain their contractual relationship unchanged— continue to assume the costs of teleworking, like Sandra.
For Manuel Fuentes Muñiz, professor and researcher at the Universidad Autónoma Metropolitana (UAM), the challenge of the implementation of teleworking not only lies in modifying contractual relationships, but in guaranteeing compliance with the new provisions, which has not happened among those who have signed changes in their contracts.
“What some companies have done is that, in the areas in which they have teleworking, they establish that the modality does not exceed 40% of the time, in order to avoid any responsibility deriving therefrom, such as paying electrical power, internet or the tools that must be provided to teleworkers”, says the labor lawyer.
3-2-2 labor model
According to research conducted by the Talent Solutions Firm, of ManpowerGroup and Everest, the 3-2-2 model (three days at the office, two days at home and two days of rest) is the predominant mode among the hybrid schemes being adopted by companies. But in a five-day workweek, working two days from home entails not surpassing the 40% of the time established by the LFT.
“There is a legal architecture for evading compliance with the reform on teleworking”, emphasizes Manuel Fuentes. With this format, the specialist points out, the objectives of teleworking regulation are diluted, such as guaranteeing the provision of equipment to workers, safety and health, and that the working day does not exceed the legal limit.
From the perspective of Jimena Sánchez, the 3-2-2 model is a legal way of maintaining labor flexibility, providing the benefit of remote work, but without falling within the provision established in the Federal Labor Law.
“ If we work from our home two days and we go to the office three days, we do not fall within the mode of teleworking, because it does not represent more than 40 percent. Even with this hybrid scheme, employers would be exempt from the payment of the expenses, of providing the work tools”, explains the specialist.
This is only an example, specialists agree, that after one year of the application of the reform on teleworking, there are several legal loopholes that must be reviewed.